Will Mridula Sinha overlook SC guidelines to pardon Mickky?

SATISH SONAK, PANAJI | 10 August 2015 10:54 IST

Has the Bharatiya Janata Party government led by Laxmikant Parsekar considered the legal provisions and guidelines set by the judicial system of this country while recommending to pardon its alliance partner and Nuvem MLA Mickky Pacheco from its six-month jail term?

Articles 72 and 161 of the Constitution of India are the relevant constitutional provisions regarding the grant of pardon, remissions, suspension of sentence, etc by the President of India and the governor of a state. 

Article 161 states, "The governor of a state 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 against any law relating to a matter to which the executive power of the state extends." 

The Supreme Court in the case of Kehar Singh vs Union of India (1989 (1) SCC 204) observed that "it may not be possible to lay down any precise clearly defined and sufficiently channelized guidelines". It approved Justice Holme's classic enunciation that "a pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed". 

Supreme Court in Maru Ram vs Union of India (1981 (1) SCC 107) clarified, "The president and the governors in discharging the functions under Article 72 and Article 161 respectively must act not on their own judgment but in accordance with the aid and advice of the ministers. All public power, including constitutional power, shall never be exercisable arbitrarily or mala fide. Consideration of religion, caste, colour or political loyalty are totally irrelevant and fraught with discrimination." 

In Swaran Singh vs state of UP (1998 (4) SCC 75) Supreme Court said, "We cannot accept the rigid contention that this court has no power to touch the order passed by the governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law." 

The Supreme Court in Satpal vs state of Haryana (2000 (5) SCC 170) noted, "The power of granting pardon under Article 161 is very wide and does not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised." 

The Supreme Court declared, "It would be justified in interfering with such order if the governor is found to have exercised the power himself without being advised by the government or if the governor transgresses the jurisdiction in exercising the same or it is established that the governor has passed the order without application of mind or the order in question is mala fide one or the governor has passed the order on some extraneous consideration."

  

Some of the relevant illustrative considerations culled out from the judicial dicta for the exercise of the power of pardon are: 

(a) Interest of society and the convict; 

(b) The period of imprisonment undergone and the remaining period; 

(c) Seriousness and relative recentness of the offence; 

(d) The age of the prisoner and the reasonable expectation of his longevity; 

(e) The health of the prisoner especially any serious illness from which he may be suffering; 

(f) Good prison record; 

(g) Post-conviction conduct, character and reputation; 

(h) Remorse and atonement; 

(i) Deference to public opinion. 

Was the Goa cabinet guided by above factors when it decided to recommend a pardon to the coalition partner MLA? Or only political considerations prevailed? 

Supreme Court in Kehar Singh case has unequivocally rejected the contention of the Attorney General that the power of pardon can be exercised for political consideration. 

Will the honourable governor of Goa sidetrack the aforesaid settled principles and indulge in an undue arbitrary exercise of the pardoning power? 

Alas, if that happens it would indeed be a fatal blow for law and order. 

(Writer is Goa's eminent lawyer and social activist)

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6 months for slapping a Govt. official, and nothing for looting millions of public money?

- Jagat, Goa | 10 th August 2015 12:55

 

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