"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, November 25, 2012

Kasab, buried with rights

Madabhushi Sridhar wrote a interesting piece in the Hindu on 23 Nov 2012 on the constitutional impropriety involved in the execution of Ajmal Kasab. Post series of judicial decisions, judicial review of the exercise of power of pardon is established in India. (See, Kehar Singh, Maru Ram, Dhanajoy Chatterjee and Epuru Sudhakar to mention few important decisions.)

The position of law on review of order by the President or the Governor under Articles 72 or 161 respectively is clear and in the positive. In Epuru Sudhakar, the court also summarise the grounds as follows

(a) that the order has been passed without application of mind
(b) that the order is mala fide
(c) that the order has been passed on extraneous or wholly irrelevant
(d) that relevant materials have been kept out of consideration
(e) that the order suffers from arbitrariness

Kasab therefore had the right to invoke the review power of the court of the order rejecting his mercy petition. A decision on that application would have sealed his fate. 

From the available news reports it is not clear whether he was aware of this opportunity and also the reasons to reject the petition by the President. There has also been debate as to whether the order rejecting mercy petitions has to be reasoned and courts have given contrary signals on this issues. Having said that, a reasoned order becomes imperative to exercise judicial review meaningfully. (See S. R Bommai) 

1 comment:

Anonymous said...

It seems ths writer of this article is much worried of Kasab who killed innocent people for no reason. Such thinkers favour a thousand Kasabs who burn down India. I am against it..