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)