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 7^th 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)