Thursday 28 March 2013

Letter to H.E. The President of India for Pardon to Sanjay Dutt



                                                                                              March 28,2013
1.      H.E. The President of India,
Rashtrapati Bhavan,
New Delhi.

2.      H.E. The Prime Minister of India,
South Block,
New Delhi.

3.      H.E. The Home Minister of India,
South Block,
New Delhi.

Your Excellency,
Re: Pardon to Sanjay Dutt

      You would be aware that Sanjay Dutt has been sentenced by Hon’ble the Supreme Court to 5 years imprisonment.  By this letter I am appealing to you to grant pardon to him under Article 72 of the Constitution of India. In this connection I wish to state as follows:

The legal position:
The power of the President to pardon etc is contained in Article 72 of the Constitution which states:

“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”

The leading case on the power of the President/Governor to grant pardon etc is the Constitutional Bench Judgment of the Supreme Court in Maru Ram vs. Union of India AIR 1980 SC 2147. It has been observed therein

“Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise”.

  In Kehar Singh vs. Union of India AIR 1989 SC 653, the Supreme Court observed that the judicial power and the power to pardon are totally different. The power of pardon cannot ordinarily be subjected to judicial review except on very narrow grounds mentioned in Maru Ram’s Case.

From a reading of these Constitutional Bench Judgments, the following principles   can be derived:

(a)  The power of pardon can be exercised for various reasons e.g. humanitarian considerations, and is not limited to the public good. This needs to be emphasized since it has been stated by some persons on TV Channels that the power of pardon can only be exercised for the public good. The Supreme Court observation in Maru Ram’s case that “Considerations for exercise of power under Article 72/161 may be myriad” is a complete reply to those who say that this power can only be exercised for the public good and for no other reason.

(b)  However, as observed in Maru Ram’s case, this power cannot be exercised for irrelevant, irrational, discriminatory or malafide considerations.

(c)    The court cannot sit as a court of appeal over the order of the President/Governor granting pardon. The scope of judicial review of such an order is extremely limited, and can be exercised only in rare cases when the court finds that such an order was malafide, arbitrary or discriminatory.

Maru Ram’s case and Kehar Singh’s case are Constitutional Bench judgments, i.e. judgments of 5 Judge Benches, and hence anything said to the contrary in judgments of smaller benches of the Supreme Court will not be good law.

  Keeping in mind the above legal position we may consider Sanjay Dutt’s case.

The facts of Sanjay Dutt’s Case
Before coming to Sanjay Dutt’s case certain objections by some people may be replied to.

It has been stated that the law has to be the same for everybody. This is no doubt true, but the facts may be different in different cases. We have therefore to see the facts of Sanjay Dutt’s case, and then consider whether he should be granted pardon.
            It is then alleged that Sanjay Dutt is a celebrity, and granting him pardon will send a wrong message. In my opinion Sanjay should not be granted pardon merely because he is a celebrity. At the same time he should not put to disadvantage merely because he is a celebrity. If he deserves pardon, he should not be denied it just because he is celebrity.

In paragraph 70 of the Supreme Court judgment it has been observed: “In the case of Sanjay Dutt, the Designated Court took a view on the basis of his own confession that the weapons were not acquired for any terrorist activity but they were acquired for self-defence, therefore, acquittal was recorded in respect of the charge under Section 5 of TADA. We fully agree with the same”

            The Supreme Court has held that Sanjay Dutt was not involved in the 1993 bomb blasts, and he is not a terrorist. The only charge on which Sanjay Dutt has been found guilty is the charge of having in his possession a prohibited weapon. However, regarding this charge the Supreme Court has observed that Sanjay Dutt was keeping the weapon not for terrorist activity but for self defence. This being the verdict of the Supreme Court it has be accepted.

            Of course possession of such a weapon without a licence is illegal, and therefore the Supreme Court was bound to give minimum punishment of 5 years imprisonment mentioned in Section 25 (1A) of the Arms Act. I am therefore not questioning the Supreme Court verdict.

            However, judicial proceedings are different from the pardon proceedings. As held in Kehar Singh’s case (Supra), the considerations in the two proceedings are different. For instance, in judicial proceedings, the court has no discretion to award lesser punishment than the minimum prescribed by law. But in pardon proceeding the President/Governor can grant pardon even if the person convicted has not served the minimum punishment, as in Nanavati’s case. The power to grant pardon is a Constitutional power, and no constitutional provision can be curtailed or controlled by an ordinary statute.

 Now the question is whether pardon should be granted to Sanjay Dutt or not.

 In my opinion pardon should be granted for the following reasons:
(i)                He has already undergone 18 months imprisonment.

(ii)              After his release on bail after undergoing 18 months imprisonment it took him 5 or 6 years to restore his damaged career. During this 5 or 6 years he was often ostracized by people as he had the brand of a terrorist on himself. He did not get film offers as producers thought that the film may remain incomplete if he is sent to jail midway. He could not get bank loans. He had to take permission of the court for foreign shooting every time he wanted to go abroad.. He had to undergo various other tribulations and indignities during this 20 year period.

(iii)            Sanjay Dutt has got married, and they have two small children.

(iv)            During this 20 years period when the case was going on there is no allegation that he did anything wrong, rather he did good social work.
Considering all these factors I am of the definite opinion  that Sanjay Dutt should be granted pardon

Had he not undergone imprisonment for a single day and not faced so many hardships for the last 20 years I would not have appealed for his pardon. But in my respectful opinion he has substantially undergone the punishment. He may not have remained in prison for 5 years but he has undergone sufferings which is substantially equivalent to that.

 I am reminded of the famous speech of Portia in Shakespeare’s ‘Merchant of Venice’ that justice should be tempered with mercy.  In my opinion we should take the approach of Portia rather than that of Shylock who wanted a pound of flesh.
  
 I am clarifying that I am not appealing that Sanjay Dutt should be pardoned because he is a celebrity. I am also appealing for pardon to Zaibunnasa Kazi, co –accused who is not a celebrity. I have in the past appealed for pardon for many person who were not celebrities e.g.  Gopal Dal, Sarabjeet Singh, Khalil Chisthy, etc.

I therefore appeal to you to pardon Sanjay Dutt under Article 72 of the Constitution. I mention that Article 72 does not state who should send the appeal. Hence even if Sanjay Dutt has not sent an appeal I am entitled to send such an appeal.
            I conclude by quoting a shlocka of Brahaspati:
“Kevalam shaastram aashritya na kartavyo hi nirnayah
Yuktiheeney vichaare tu, dharmahaani prajaayate”
which means
“The decision should not be given merely by following the letter of the law
For if the decision is inappropriate injustice will follow”

            With regards,

                                                                                    Yours faithfully,

                                                                                  (Markandey Katju) 
                                   

Letter to H.E. The President of India for Pardon to Zaibunnisa Kazi


                                                                                                                                                
                                                                                                                 March 28, 2013
1.      H.E. The President of India,
Rashtrapati Bhavan,
New Delhi.

2.      H.E. The Prime Minister of India,
South Block,
New Delhi.

3.      H.E. The Home Minister of India,
South Block,
New Delhi.

Your Excellency,
Re: Pardon to Zaibunnisa Kazi
I am appealing to you to pardon Zaibunnisa Kazi who has been sentenced to 5 years  imprisonment by the Hon’ble Supreme Court.  My reasons are as follows:
The legal position:

The power of the President to pardon etc is contained in Article 72 of the Constitution which states:

“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”

The leading case on the power of the President/Governor to grant pardon etc is the Constitutional Bench Judgment of the Supreme Court in Maru Ram vs. Union of India AIR 1980 SC 2147. It has been observed therein

“Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise”.

 In Kehar Singh vs. Union of India AIR 1989 SC 653, the Supreme Court observed that the judicial power and the power to pardon are totally different. The power of pardon cannot ordinarily be subjected to judicial review except on very narrow grounds mentioned in Maru Ram’s Case.

From a reading of these Constitutional Bench Judgments, the following principles   can be derived:

(a)  The power of pardon can be exercised for various reasons e.g. humanitarian considerations, and is not limited to the public good. This needs to be emphasized since it has been stated by some persons on TV Channels that the power of pardon can only be exercised for the public good. The Supreme Court observation in Maru Ram’s case that “Considerations for exercise of power under Article 72/161 may be myriad” is a complete reply to those who say that this power can only be exercised for the public good and for no other reason.

(b)  However, as observed in Maru Ram’s case, this power cannot be exercised for irrelevant, irrational, discriminatory or malafide considerations.

(c)    The court cannot sit as a court of appeal over the order of the President/Governor granting pardon. The scope of judicial review of such an order is extremely limited, and can be exercised only in rare cases when the court finds that such an order was malafide, arbitrary or discriminatory.

Maru Ram’s case and Kehar Singh’s case are Constitutional Bench judgments, i.e. judgments of 5 Judge Benches, and hence anything said to the contrary in judgments of smaller benches of the Supreme Court will not be good law.

Keeping in mind the above legal position we may consider Zaibunnisa Kazi’s case.

The Facts of Zaibunnisa Kazi’s Case:
In my opinion she should be pardoned for the following reasons:
(1)  She is an old widow of 70 years of age. She has been operated for a tumour in her kidney and she has to go for regular check-ups. Her legs have developed swelling so she has to be kept on a salt less diet. She can hardly walk or talk. I do not think that in her frail health she will survive 5 years in jail.
(2)  She has already spent about 9 months in jail.
(3)  Even on the merits of her case, I am of the opinion that she deserves pardon.
 In paragraph 125 of the Supreme Court judgment in her case it is clearly stated that she is innocent of the main charge of conspiracy in the 1993 bomb blasts. What she has been found guilty of is of having in her possession illegal weapons. This finding is based on the retracted confession of a co-accused Manjoor Ahmed. There was no recovery of any weapon in her house, nor has she made any confession. With due respect to the Hon’ble Supreme Court I have some reservations about the finding of Supreme Court on this point.

 Be that as it may, in my respectful opinion Zaibunnisa Kazi fully deserves pardon and therefore I am appealing to you to grant her pardon under Article 72 of the Constitution.

 I am reminded of the famous speech of Portia in Shakespeare’s ‘Merchant of Venice’ that justice should be tempered with mercy. In my opinion we should take the approach of Portia rather than that of Shylock who wanted a pound of flesh.

           I conclude by quoting a shloka of Brahaspati:
“Kevalam shaastram aashritya na kartavyo hi nirnayah
Yuktiheeney vichaare tu, dharamhaani prajaayate”
which means
“The decision should not be given merely by following the letter of the law
For if the decision is inappropriate, injustice will follow”
      With regards,
                                                                                          Yours faithfully,

                                                                                          (Markandey Katju)



The Newshour Debate: On Pardon of Sanjay Dutt and Zaibunnisa Kazi


Wednesday 27 March 2013

Zaibunnisa Kazi

Two days back I received an email from Shagufta, daughter of Zaibunnisa, who was a co-accused in the bomb blast case, and was convicted under section 3(3) and 6 of TADA and sentenced by the Supreme Court to 5 years imprisonment. Shagufta requested that I should appeal for pardon for her mother too, just as I had done for Sanjay Dutt. 

I do not make appeals for pardon lightly,without carefully studying all the relevant material and without being satisfied that the case deserves pardon. That is why it took me two days studying the case of Zaibunnisa, and now I have come to the firm conclusion that she deserves pardon, for which I will be soon issuing an appeal to the President of India/Governor of Maharashtra. 

My reasons are twofold :

(1) Zaibunnisa is a 70 year old widow with various ailments. She had a kidney operation some time back, and has to be screened every 6 months. She can hardly walk. I do not think she will survive for long in jail.

(2) Even on merits I am of the opinion that she deserves pardon. Paragraph 125 of the Supreme Court judgment states that she is not guilty of the main charge of conspiracy. The only charge on which she has been convicted is taking into possession some prohibited weapons. The only evidence in support of this charge is the retracted confession of co-accused Manzoor Ahmed Sayed. It was not disputed that no recovery of any weapon was made from her house. 

In my respectful opinion she should at least have been given the benefit of doubt. In these circumstances I have decided to appeal to the President of India as well as the Governor of Maharashtra (since there is a controversy who is the appropriate authority) to pardon Zaibunnisa and Sanjay Dutt. 

Some people have said that many others will also appeal for pardon. My reply is that I am willing to consider every case which is brought to my notice, but I will make an appeal only if after carefully studying the relevant material I am satisfied that the case deserves pardon. And I make no distinction between a celebrity and non celebrity

Why I am not the Devil's advocate

Portia or Shylock?
by Justice Markandey Katju

“Kevalam shaastram aashritya na kartavyo hi nirnayah
Yuktiheeney vichaare tu, dharmahaani prajaayate”

“The decision should not be given merely by following the letter of the law
For if the decision is wholly inappropriate, injustice will follow”

            Many questions have arisen over my appeal to the Governor of Maharashtra to pardon Sanjay Dutt under Article 161 of the Constitution. Hence I am clarifying my stand.

1.      It is alleged that I am appealing for him because he is a celebrity. This is wholly untrue. I make no distinction between celebrities and non celebrities. I made appeals for release of Gopal Das, Sarabjit Singh, Khalil Chishty, and many others who were non-celebrities. Some people have alleged I am a fan of Sanjay Dutt. This again is incorrect.  Personally, I do not see films, and have not seen one for about 40 years. I do not know Sanjay, and am not his relative or friend. How can I be his fan?

2.      It is alleged that Sanjay should not be pardoned because many people were killed in the 1993 Mumbai bomb blasts. But Sanjay has not been held by the Courts to be a terrorist or involved in the bomb blasts. The only charge found proved against him was having illegal weapons in his possession. But as pointed out in paragraph 70 of the Supreme Court judgment “In the case of Sanjay Dut, the Designated Court took a view on the basis of his own confession that the weapons were not acquired for any terrorist activity but they were acquired for self defence, and therefore acquittal was recorded in respect of the charge under Section 5 of TADA. We respectfully agree with the same”.
Now once the Supreme Court has held that Sanjay was not involved in the 1993 bomb blasts does it behove people to keep on harping that many people were killed and wounded in those blasts in which Sanjay had no hand.

3.      It is then alleged that the law should be the same for everyone. The answer is that though the law is the same, the facts may be different. Hence each individual case has to be examined on its own merits. In the case of Sanjay the facts are that (a) he has undergone 18 months imprisonment, and after release on bail it took him about 5 years to restore his damaged career, and during this period he was often ostracized and treated as a terrorist, he did not get film offers (because film producers thought he may not complete the movie, as he may again go to jail). He could not get bank loans, he had to take permission from the court every time to go for foreign shooting, etc. He had to suffer several other tribulations and indignities during the last 20 years. (b) He has got remarried and has 2 small children (c) In the last 20 years when the case was going on he was not  found to have done anything wrong, rather he has done good social work. A person changes in 20 years. So should he be sent back to jail for foolishness done a long time back when he was a young man?

Yes, if other co-accused deserve pardon they should also get it, and I am seriously considering the case of Zebunnesa Kazi, whom I prima facie think deserves pardon, though I am collecting more material about her before I make up my mind.

4.      It is alleged that if pardon is granted to Sanjay it will subvert the judicial verdict. This argument overlooks the fact that under our Constitution apart from the judicial process there is also a pardon/reduction of sentence process under Articles 72 and 161. The considerations in the pardon process are different from those in the judicial process. For instance, in the judicial process the court has no discretion to pass a sentence below the minimum prescribed by law. But since the power of pardon is a Constitutional power, the same restriction does not apply to it, because a Constitutional provision cannot be curtailed by a statutory provision. Hence the Governor or President can grant pardon even if the convict has not served the minimum sentence as in the case of Nanavati. And humanitarian considerations are also relevant in the pardon proceedings.

      Had Sanjay Dutt not gone to jail for a day nor been subjected to various forms of harassment for the last 20 years I would not have appealed for pardon merely because of Munnabhai or his parents’ good social work. But Sanjay has, no doubt in different forms, served the sentence, as pointed out above.

5.      As regards the objection that the appeal for pardon can only be to the President of India in view of Entry 5 of list 1 of the 7th Schedule read with Article 72 and 161 of the Constitution, to avoid this controversy, I suggest a separate appeal to the President by way of abundant precaution.

Therefore the question boils down to this: Should one be a Shylock who demands a pound of flesh, or should one be a Portia who pleads that justice should be tempered with mercy. Let the , people, and the concerned authority, decide.  

( An edited version of this article is published in Hindustan Times on 27/03/2013)


  

Monday 25 March 2013

Wake up Hanuman

Journalists comment on everything under the sun. But when someone comments on their profession they let loose a furious fusillade flaunting the slogan ‘Freedom of media in danger’. Most condemn even the suggestion for a public debate on the issue of media regulation and media responsibilities.

No one can deny my credentials as a strong supporter of media freedom wherever and whenever it was threatened, whether in Maharashtra, J & K, Bihar, Delhi, West Bengal or elsewhere. But at the same time I have also called for media responsibility What is wrong in that? Every social activity has to be regulated, because man is by nature a social being, as ‘Aristotle said. So our freedom cannot go to the extent of damaging society. No freedom can be absolute, it is always subject to reasonable restrictions in the public interest. It follows that every profession has also to be regulated.

I am against control of the media, but am in favour of regulation, the difference between the two being that in control there is no freedom, whereas in regulation there is freedom but, subject to reasonable restrictions in the public interest.

My latest suggestion for prescribing some minimum qualifications for journalists and regulating the schools of journalism has also resulted in a fierce denunciation from many quarters. So let me explain my view.


       Journalism is a profession. When a professional field is at an undeveloped stage there is no need for formal  training or a formal qualification. For instance, in Europe uptothe 18th Century and early 19th Centuries, when medical science was still relatively undeveloped, there was no formal qualification required to become a doctor. One sat with a doctor (usually one’s father), saw how he worked, and got advice from him, and became a doctor. Our hakims and Vaids usually learnt from their father by watching him work, and learning from him.


But when medical science became a developed field the need for formal training and formal qualification became imperative. The same is true of other professions like law, teaching, chartered accountant, etc.

It is true that one learns journalism in the field. But one learns much of the legal profession too in the field, after one has obtained a law degree. Why then have the requirement to have a law degree for becoming a lawyer? Why have the requirement to have an M.B.B.S. degree to become a doctor? Why not just allow a person to sit with a lawyer or doctor, watch him work for a few years, and become a lawyer or doctor? The answer is that when the field has become developed there is imperative need for formal training where the theoretical principles and basic skills are taught. Later, when one has completed this formal course and obtained the formal qualification, one will no doubt learn a lot in the field, but without this basic formal training one may not be able to become a skilled professional.



 It is true that there have been many great journalists without a formal training or qualification. But they have been great inspiteof not having this, notbecause of not having it. There must have been many journalists who remained mediocre and did not flower into great journalists because they lacked a formal training in their profession.


Nowadays many persons enter into the field of journalism with little or inadequate training in journalism, and this often leads to negative effects because such persons often do not maintain high standards of journalism. Since the media has an important influence in our lives, and since the field of journalism is now quite developed, the time has now come when some formal qualification should be prescribed for those wanting to become journalists.


Regarding the view that one learns journalism only by entering in the field, a senior journalist Mr. Vinod Sharma, in a recent Rajya Sabha T.V. panel discussion (The Big Picture) said that nowadays what one learns on the job is trickery, making improper compromises, saving one’s job rather than saving one’s conscience, etc. So should one not be taught ethical principles in journalism? Where will one learn this since what is taught in the field is often the reverse?

In the Institutes and departments of journalism, which have sprouted all over the country, many technical and ethical skills in journalism are taught. These will no doubt be  of great use when later, having completed the course and obtained the qualification, one enters the field.

Also, this is the age of specialization. To report on financial matters, for example, one has to have at learnt a rudimentary idea of finance, and similarly one should have a rudimentary idea of medical science, law, history, literature, agriculture, labour matters, etc. All this knowledge can be provided in a good school of journalism.



        Unfortunately many of the departments and Institutes which have mushroomed all over the country lack proper teaching staff, proper facilities and infrastructure. Hence I have requested the committee constituted by me to look into this matter and give their recommendations.


         The committee constituted by me will study the matter in detail and everyone is welcome to give their suggestions to it. The Press Council can also organize a seminar for this purpose, invite the media persons and others to give their views. After the committee submits its report I will place it before the Full Press Council. The Council may accept the report or reject it or accept it with modifications. If the report is accepted, with or without modifications, I will send it to the Central Government, which may accept or reject it, or accept it with modifications. If the government does not reject it, it will be sent to Parliament, which, as is the usual procedure, send it to a select committee. The select committee, after considering it, will then send its recommendations to Parliament, which may accept it or reject it or accept it with modifications. It will become law only when the President gives his consent.


From the above it is evident that my suggestion is not creating a law (which indeed I have no power to create), and it will have to pass through several procedural stages before it becomes law, (if it does at all). What then is all the hullabaloo about? Can one not even make a suggestion? 


It is time that mediapersons realize that I am not their enemy but their friend. I regard the media as Hanuman, who had forgotten his duties and powers, and I am the Jambavant reminding it about the same.  


( Published in The Indian Express on March 25,2013 )

Indian Journalism at Ground Zero. To read click here