To apply for pardon under Article 72, the convict himself must apply. Also, he must express honest, genuine remorse. Both of these conditions are not met in the Afzal case.
Today all eyes are on the President of India before whom the mercy petition filed by the family of Mohammed Afzal Guru is pending. It must be borne in mind that clemency and pardon are two completely different concepts — pardon connotes forgiveness for one who is genuinely remorseful and sorry for what he/she has done. When the option of pardon is exercised by a sovereign power such as the head of State, the crime and the associated punishment are condoned.
In the present case, the petition has not been filed by Afzal Guru and he has expressed no remorse for having taken part in the heinous attack on the Indian Parliament on December 13, 2001, with the intention of killing prominent political leaders of the country. In these circumstances, the question of pardon by the President under Article 72 of the Constitution would hardly arise. For the application of Article 72, not just remorse but honest, genuine remorse must be expressed by the person concerned. This is totally absent in the present case and, therefore, the petition for pardon should be thrown out at the threshold as being not maintainable.
Clemency, on the other hand, is the expression of mercy without condoning or forgiving the crime itself. The famous lines from Shakespeare’s The Merchant of Venice on the quality of mercy are a plea for showing mercy to an unreasonable Shylock who wanted his pound of flesh. There is thus a world of difference between the concepts of pardon and clemency, the former as envisaged under Article 72 of the Constitution and the latter a fictional and dramatic concept.
The judgment of the Supreme Court in the Andhra Pradesh case where the remission of sentence granted by Governor Sushil Kumar Shinde to a Congress worker who faced 10 years in prison in connection with the killing of two persons, including a TDP activist, comes at a time when the country is debating the Afzal case. “Rule of law is the basis for evaluation of all decisions (by the court)… That rule cannot be compromised on the 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 court warned.
Justice Kapadia, while agreeing with the main judgment delivered by Justice Pasayat, gave a strong reminder: “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 performance 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.”
“An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are fraught with discrimination,” Justice Kapadia said. Referring to the Indira Gandhi assassination case, the court reiterated that the power of pardon is judicially reviewable. In other words, since the power of pardon is an executive act, it is open to scrutiny by the court. In the case before the Supreme Court, Governor Shinde had on August 11, 2005, granted remission of the unexpired sentence of about seven years of Congress activist Gowru Venkat Reddy, against which relations of the deceased moved the Supreme Court.
I gather from statistics given in newspaper reports that at present 51 persons are on death row all over India and about 20 applications have been moved for clemency. It would appear that the President had, as far back as October 2005, said that the government may consider pardon for all the people whose petitions were pending before him. He would want a comprehensive policy mindful of considerations such as the convict’s age, his mental and physical condition, and his ability to reintegrate into society, before the government could make a recommendation in this behalf.
It must be remembered that all the above consideration apply only when the convict himself/herself applies for pardon/clemency because the right given under Article 72 of the Constitution is a personal right and it cannot be exercised by anyone except the person concerned. The case of Afzal Guru is, therefore, different from the cases decided earlier since this aspect has not been pressed or considered so far.
Shyamlha Pappu is Senior Advocate, Supreme Court of India