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)
