"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.

Saturday, March 23, 2013

I pardon thee ...

Executive's power of pardon has resurfaced on the wake of the Mumbai blast judgment. Heavyweights including a retired Supreme Court judge have lined up to ask the executive to invoke the constitutional power of pardon by the Governor for Sanjay Dutt. Power of pardon is no more the act of mercy entrenched in the punishing and exacting God's/Rulers nature. Justice Holmes has reoriented the power of pardon in a constitutional democracy in the following words;

[P]ardon ... is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the publicwelfare will be better served by inflicting less than what the judgment fixed (Biddle v. Perovich)

Germane to this debate is the mode in which the power of pardon is exercised. This has been a perpetual debate and much has been written about it. Major concern is the exercise of this power, what distinguish a case fit to be pardoned from  the undeserving. The lack of guideline to help the executive to award or reject pardon is an important fact. It is also argued that a discretionary power of this nature cannot be straightjacketed with specific guidelines. The arbitrary and unreasonable use and potential to use this power has resulted in a series of judgments (see, Maru Ram, Dhananjoy Chatterjee, Kehar Singh, Ranga Billa, Swaran Singh, Epuru Sudhakar). In Epuru, Supreme Court has laid down the principle of limited judicial review of executive's power to pardon on the following grounds;
  1. Lack of application of mind
  2. Malafide order
  3. Order based on extraneous and irrelevant considerations
  4. Order without considering relevant materials
  5. Arbitrariness
These are conditions that can set the review jurisdiction of judiciary into motion. Sanjay Dutt's application, if any, for pardon will be a tight rope walk for the executive. The decision of the executive should not be the vanishing point of democratic trust. The grounds in Epuru is for the invocation of the review jurisdiction, not to help the executive to take the decision. 

The trust factor could be restored only by principled decision making in the exercise of discretionary powers as this. It would be beneficial if state/central government could come up with norms to be followed on determination of  the power to pardon. Setting up an agency in the model of the Parole Board of Canada to help the Executive Head in decision making could be considered. Making the decisions of this administrative body judicially reviewable only for the check of non arbitrariness and principled decision making will be helpful to tide over some of the criticisms Canadian Board has faced. Having said that with the kind of delay in the judicial process, it shall not be a never ending ordeal for the deserving to get pardon. Therefore lot of things has to be set right to win back the receding confidence level of the society in democracy.

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