Misuse of Clemency Power

The Supreme Court's verdict which bares the conditions for seeking clemency is a huge blow for self-proclaimed rights defenders. Of late, it has become a fashion to set roadblocks in the execution of Supreme Court's decisions. It would definitely deflate the spirits of people, who are hell-bent to weaken the judicial system in a very systematic manner, for the reasons best known to them. They are the ones who wish to remain in the limelight and, in the process, receive awards for championing the cause of sufferers from the International agencies.

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Justices S H Kapadia and Arijit Pasayat stated in this landmark and historic judgment stated: " Rule of Law is the basis for evaluation of all decisions (by the court)... The supreme quality of the Rule of Law is fairness and legal certainty. Every prerogative has to be subject to the Rule of Law. The Rule of Law cannot be compromised on grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent."

"The President and the Governor are the sole judges of the sufficiency of facts and of the appropriating of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution itself. The principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a Constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutations."

"These are not acts of grace. They are part of the Constitutional scheme. When a pardon is granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment has fixed. Granting pardon is in no sense an overturning of a conviction, but is rather an executive action that would mitigate or set aside the punishment of a crime. It eliminates the effect of conviction without addressing the defendant's guilt or innocence. The exercise of executive clemency is a matter of discretion and yet subject to certain standards.

It is not a matter of privilege. It is a matter of official duty - the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future. It is vested in the President or the Governor, not for the benefit of the convict only but for the welfare of the people who may insist on the performance of the duty. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter."

The Supreme Court is interested in restoring the dignity of rule of law when it states that 'it can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. Rule of law is the basis for evaluation of all decisions.'

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It appears judicial activism has come in the way of their vested interests! Whatever be the reason, the Supreme court's decision that clemency powers need to toe the line of Constitutional obligations and that they should not hurt the sentiments of the victims should refrain the protectors of the rights from cooking up a storm every now and then. It's time they give up their habit of creating embarrassing situations before the Courts by exhibiting trash sentimentality for the hard-core criminals, who, in the first place, deserve no kind considerations.