The Supreme Court’s note of warning on the manner in which presidential pardons and clemency are granted has come at an opportune moment. For the last few weeks, appeals for granting clemency to Mohammad Afzal, accused of conspiracy in the 2001 attack on Parliament, have been gathering steam. The government has also been told that it will be political folly to make a martyr out of Afzal. The protests of the opposing camp, which sees the approval of Afzal’s mercy petition as a setback to the nation’s security and honour, have also reached a high pitch. President Abdul Kalam and the council of ministers — who will be advising him on his course of action — are thus under intense public and political pressure. In this cacophony, the Supreme Court’s alone has been a voice of reason, reminding the executive of its foremost responsibility: upholding the rule of law.
The apex court’s statement, that a pardon is subject to judicial review, should, however, not be seen as an attempt to preempt any decision in Afzal’s case. It was only sounding out the need for a system of checks and balances. In our democracy, no institution has been given absolute power to do as it wills. In reviewing sentences awarded by the Supreme Court, the President and Governors are bound to accept the advice of the council of ministers. Pardons and remissions are neither a matter of whim nor can justice be allowed to be compromised because of external pressures. This rule was obviously violated by Governor Sushil Kumar Shinde, who, on the advice of the Andhra Pradesh government, reduced the sentence awarded to Congress worker Gowru Venkata Reddy.
In Afzal’s case, as we have argued before, the courts may have been too harsh in awarding him the death penalty. Afzal was neither the prime conspirator nor among those who actually stormed Parliament. While he deserves stringent punishment for a crime committed against the nation, his case does not fit into the set of ‘the rarest of rare cases’ that invite capital punishment. Some may agree with the Supreme Court that collective conscience will only be satisfied by Afzal’s hanging. But will this action follow the rule of law? That is what the President must decide.