Archive for Sanjay Dutt

Mr Katju and the Perils of Being Earnest

Posted in India, Law, Politics with tags , , , , , , , , , on March 30, 2013 by salaamreaders

“A mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration cannot be allowed to abuse the process of the Court by initiating vexatious or frivolous litigation.” This is what the Supreme Court had observed about locus standi in Janata Dal Vs H S Chowdhary. Though, one might even agree that Mr Katju was just being earnest, and not moved by any personal gain or profit, in appealing for pardoning Mr Sanjay Dutt, he would be well advised to consider the above observation of the Supreme Court. And that the affected gentleman has publicly declared his disinclination in seeking such a pardon, could provide the perfect occasion for such introspection too. It is indisputable, that, like any other ordinary citizen, Mr Katju too has the right to hold an opinion in the matter. The only difficulty is, that, he is no ordinary citizen. He is a former judge and currently holds an office under the government. Judicious, if not judicial, rectitude is highly commendable even for retired judges! Such, alas, are the perils of being earnest!

Be that as it may, the law, in India, relating to pardon etc has once again become a subject of fierce public debate. The last time was in 1961, when the Governor of the erstwhile State of Bombay had suspended the sentence of Commander Nanavati who had been convicted and sentenced to life imprisonment for the murder of his wife’s paramour. His case had become such a cause célèbre that it was not only debated intensely in the press but also resulted in abolition of the jury system in India.

In India, the President and the Governors can grant pardons, reprieves, respites or remissions of punishment. They can also suspend, remit or commute sentences. The relevant provisions are contained in Articles 72 & 161 of the Constitution. It has been argued by Mr Mahesh Jethmalani and also accepted, so graciously, by Mr Katju, that the President alone can grant pardon to Mr Dutt who was convicted under the Arms Act. It cannot be anybody’s case now that Mr Dutt was involved in any terrorist activity as the Supreme Court has exonerated him under the TADA. He has been convicted only for illegal possession of a firearm and awarded the minimum prescribed punishment of five years imprisonment. He has already served about eighteen months thereof.

A pardon is a matter of grace; an act of mercy. It not only removes the punishment but wipes out the guilt attached to the offence also, notwithstanding any  judicial verdict. It is as if the offender had never committed the offence. So, if Mr Dutt is pardoned, “it makes him, as it were, a new man, and gives him a new credit and capacity” in the words of Justice Field. But would the President do it if Mr Dutt were to appeal to him? Or rather would the government recommend it, for it is actually the government which takes a decision in such matters? In our Constitutional scheme, this being an executive function, the President is obliged to act on the advice of the Council of Ministers.  In the present circumstances, the chances are remote that the government, accused as it is of being a lame duck and struck with policy paralysis, would want to be seen to be soft on the son of its owmn former MP. Mr Dutt has perhaps, therefore, been advised to disassociate himself from the kite flying of Mr Katju. And rightly so, for has Kautilya not said that, “It is the power of punishment alone, when exercised impartially in proportion to the guilt, and irrespective of whether the person punished is the King’s son or an enemy, that protects this world and the next.” In the present case, nothing could be more apt, for even those arguing for Mr Dutt would concede, that, he had been treated fairly, if not sympathetically, and his sentence is the minimum prescribed under the law.

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