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