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)
