The incorporation of Articles 72 and 161 in the Constitution of India has resulted in grave miscarriage of justice. They have raised the morale of malefactors and emboldened anti-social elements to such an extent that they commit most heinous crimes without least fear of punishment. Seeing loopholes in the present legal system which is based on alien laws they feel assured that even if they are caught they would soon be enlarged on bail and it will take ages for courts to convict them and even if they are punished they would address a petition to the President under Article 72 or the concerned State Governor Under Article 161 of the Constitution of India to remit their sentence and with political pull and pressure would succeed? in securing their release.
Article 72 of the Constitution, inter alia, lays down??The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence???.?
Like Article 72 which relates to President'spower of pardon in various offences, Article 161 dictates in a domineering way that ?The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends?.
It will be readily seen that both the Articles referred to above have empowered the President of India and State Governors to pardon any person convicted of any offence. It means the President and Governors can order to unloose the noose of the most hardened criminal of the country, who has been sentenced to death by a competent court for committing deadly offences.
Undoubtedly such laws are not only anti-people they are highly objectionable and ought to be abrogated without any further loss of time.
On the one hand Article 14 of the Constitution unequivocally declares, ?The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India? and on the other hand it makes downright discrimination between powerful convicts who have support of political leaders in power and those who are poor and underprivileged.
There are several instances which can be cited to show how persons having committed grave offences were set free much before the completion of the term of their sentence whereas poor and helpless undertrials in large number have been languishing in prisons for more than a decade even without being convicted by a competent court.
On August 14, 2004 a poor Bengali boy named Dhanjay Chatterjee convicted for alleged rape and murder had been hanged although just before mounting the gallows he had declared that he was innocent but Mohammad Afzal Guru who involved was in the dastardly attack of on Parliament House on December 13, 2001 has not been executed as yet. The main hurdle in carrying out the court'sorder in Afzal'scase is his mercy petition filed under Article 72 of the Constitution.
Only last year the Supreme Court came down heavily on both the Haryana and the UP Government for the gross misuse of power of pardon granted to State Governors under Article 161.
The Apex Court had been informed that in these States prisoners had been released much before the date of the expiry of their sentences.
For instance the Governor of Haryana set free eleven persons convicted in various crimes even when they had not completed the full term of their punishment. The Governor had exercised his constitutional prerogative not because he was personally convinced that the said convicts deserved clemency but because his ministers in a cabinet meeting had taken political decision to release them. In other words the grant of pardon to persons convicted in various crimes is virtually based not on the genuineness of their plea, but on purely political considerations.
The punishment awarded by the Court of Session after a protracted trial and collection of clinching evidences becomes a farce only because of the arbitrary exercise of the power of pardon by the President and State Governors under the Articles adverted to above.
Not only in 2007 bit even earlier on October 10, 2006, the Supreme Court had taken strong exception to the gross misuse of the Power of clemency by the President of India and Governors under Article 72 and 161 respectively.
Although the Apex Court declined to spell out specific guidelines for regulating the exercise of pardon under the above Articles, it categorically stated, ?A pardon obtained by fraud or granted by mistake or granted for improper reasons would invite review?.
Arrears of cases under these Articles are mounting day by day without showing any sign of improvement. Not only in the case of Afzal but in several other cases neither the President nor the State Governors have disposed of these matters expeditiously. Till the first week of January this year 28 petitions of persons convicted for murder were pending before the President of India. Even persons pronounced guilty of the murder of the former Prime Minister Rajiv Gandhi have not been hanged even after the lapse of many years due to the mischief of Article 72. Had there been no such faulty legislation, not only Rajiv'sassassins but also the attacker on Parliament Afzal would have been hanged long long ago putting an end to meaningless controversies.
It was due to this strange law that a two-time MLA found guilty of heinous crimes had been reportedly pardoned by the President. Likewise Andhra Pradesh Governor had allegedly not only reduced the sentence of a Congress Worker convicted of murdering two persons including a Telgu Desham Party in 1995, but also set him activist free without any justification.
The most striking example of the laxity of law related to clemency is the arbitrary, unreasonable and unjustified conversion of the sentence of death passed against two Andhra Pradesh robbers into life imprisonment by the President.
Not only people in India but also those abroad were shocked and dismayed when the said Andhra bandits who had burnt 23 bus passengers alive after looting them, had been given a fresh lease of life by reducing the sentence of death passed against them into life imprisonment. Had our own penal laws been adopted after the British left India after Independence such outlaws would have been executed in the most befitting manner. In 1993 the said robbers had boarded a Hyderabad bound bus with the motive of looting the passengers. As soon as the bus reached Chilkaripet one of them pulled out a knife to terrorise the passengers and his accomplice poured petrol on the floor of the bus and set it ablaze after throwing a lighted matchstick on it. The plighted passengers had already handed over their jewelleries and other belongings to them. Despite repeated imploration for mercy the devilish duo jumped out of the bus and bolted its door from outside to let them die the most agonising death. Although a few of them managed to wriggle out, fourteen were roasted alive in the devastating fire. The Sessions Judge of Guntur who conducted the trial termed it as the ?rarest of the rare case? and awarded death punishment to them. A petition for clemency was filed before the President and latter K.R.Narayanan who reduced the rigours of death sentence passed against them by converting it into life imprisonment.
The unusual interest reportedly taken by the Home Ministry headed by the CPI leader Indrajit Gupta shows not only the lecuna in the existing legal system but also moral degeneracy at the highest executive level.
It should not be forgotten that our native laws which have a glorious legacy left behind do not provide for clemency in such cases. According to Manu, one of the greatest sages and the first law-giver of India whenever any transaction has been carried out in accordance with Dharma and punishment is awarded according to law the king should sanction it and not annual the same. (Manu Smriti 09-233).
The very idea of clemency for crime is obnoxious. How can the State be lenient towards mass-murderers and others who are enemies of mankind?
Not only in our own country but even in the west there have been jurists who are totally opposed to annulment of punishment awarded to bandits as was wrongly done by the highest executive of India in the case of Andhra robbers. Justice Field has rightly said that clemency ought not to be granted without strong grounds. He observes:
?A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full it releases the punishment and blots out the existence of guilt so that in the eyes of law the offender is as innocent as if he had never committed the offence.?
The unlimited power given to the President to grant pardon to any person convicted of any offence (Article 72) and the analogous power to the Governor to Pardon any person convicted of any offence against any law (Article 161) are too wide of the mark and warrant immediate annulment.
The present Chinese laws are very strict in dealing with criminals. The rate of conviction in China is reportedly 99.7 per cent whereas in our country only 6 out of 100 accused persons are convicted and that too takes decades. Thousands of innocent men and women have been unjustly killed in India within the last 60 years after Independence but not even 60 culprits have been executed.
The law which is a synonym for Dharma must not be clement towards the outlaw.
(The author is an Advocate of Supreme Court, New Delhi and can be contacted at 207-A, Kalyani Apartments, Sector-06, Vasundhara (Ghaziabad))