Around the same time when President Pratibha Patil was getting flak for waiving the death penalty of many convicts, India was united in its hopes and prayers that her counterpart in Pakistan would exercise similar rights of presidential pardon and release Indian death row inmates languishing in their prisons. In fact, just when the family of Surjeet Singh, who served 30 years in a Pakistani jail, were celebrating his return, another Surjit Singh, in a village not far from Amritsar, was aggrieved with President Patil’s decision to pardon his father’s assassins. No further proof is required that when dealing with a tool as powerful as presidential clemency, a debate over its use is bound to arise. Arguments cut both ways with pro-amnesty supporters contending that society will gain nothing either by confining an individual for an extended period or by taking away a convict’s life. Contrast this with the pain and suffering of victims of heinous crimes who feel that such pardons destroy their only hope of receiving justice and perhaps of retribution.
Historically, presidential pardons originated in public welfare – as a matter of good policy – to serve humanity. The underlying philosophy is the need to provide for pardoning powers to be exercised as an act of god. Supporters believed that without such power of clemency “a country would be most imperfect and deficient in its political morality and in that attribute of deity whose judgments are always tempered with mercy.” But as clarified by President Patil’s office “the power of pardon is part of the constitutional scheme and not a private act of grace on the part of the President.” Under the Indian Constitution, the President’s clemency powers can only be exercised under the aid and advice of the Government.
Yet, the pardoning powers conferred under the Constitution are very wide and do not contain any limitation as to the time, occasion or circumstance in which they may be exercised. It is expected that the powers are exercised with great circumspection, reasonably and rationally and are subject to certain standards. These standards are the ones expected in the functioning of democracy. And while exercising the power to pardon, the President is not exercising a judicial power but, an executive power. As noted in a judicial pronouncement, “the judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment.” It’s important to clarify that, while granting a pardon the President is not required to give any reasons for her decision. To no one, whatsoever! Nevertheless, presidential decisions are subject to judicial review.
The Supreme Court of India in various pronouncements has clarified that the extent of the President’s powers are subject to scrutiny and the Court can interfere with the President’s decision if it’s arbitrary, discriminatory, mala-fide or has been passed on wholly irrelevant considerations. These safeguards help ensure that the powers of pardon are not misused in the hands of the political class. But even while exercising judicial review, as per our constitutional scheme, it is not open for the Courts to go into the merits of a President’s decision or inquire into the basis or information the executive exercised in a particular case. The order can only be reviewed to ensure that the President acted within the constitutionally defined limits of her power.
No doubt these pardons generate negative public opinion, but the test is which side of the fence one is standing! Let’s take the case of Sarabjit Singh who’s convicted of an offence he claims he never committed, but has spent 20 years in a Pakistani prison. Unfortunately for Sarabjit, the recent confusion whether it was he or Surjeet Singh who was being released is not the first time there has been confusion around his name. Sarabjit’s entire defence is that his is a case of mistaken identity and he has erroneously been tried and convicted for an offence committed by someone with a phonetically similar name. If true, should he not be pardoned? But assuming judicial process has in fact been followed prior to convicting Sarabjit- although it is difficult to accept that given what one reads of the methods followed by law enforcement authorities on both sides of the border to extract judicial confessions – the question that arises is what, if anything, will be accomplished by executing Sarabjit today? Taking the life of an alleged murderer will not bring back those he is supposed to have killed. In fact, there is no data to support that death penalty serves as a deterrent against violent crimes. But does that mean that convicts should be allowed to go scot-free? Absolutely not! Every nation has the right to protect its sovereignty. But in doing so, should the state have the right to take a person’s life, even if that person is its citizen? Yes- No- Only in the rarest-of-rare cases? Let’s not forget Gandhi Ji’s words, “an eye for an eye will make the whole world blind.”
Notably, the powers of clemency exist and had been incorporated in the Constitution to afford relief from the undue harshness in the enforcement of criminal law. Pardons are granted on the theory that the convict has seen the errors of his way and society will gain nothing by a convict’s further confinement, who they believe will conduct himself in an law-abiding manner. In fact, the power of clemency is intended not only for the benefit of the convict but, in exercising such powers, the President also has to keep in mind the effect of her decision on the family of the victim, the society as a whole and the precedent it sets for the future. And when it involves citizens of another country, geo-political issues must also be factored in.
In the ongoing exchange with Pakistan, India took the first step by permitting convicted virologist Khaleel Chisty, serving prison term in Rajasthan, to travel back to Pakistan for an extended period. Our neighbours reciprocated by releasing Surjeet Singh whose death sentence had previously been commuted to life imprisonment. It’s taken years to get to this point. But now is exactly the time to build relations beyond the one-off diplomatic goodwill gestures and consider continual and lasting initiatives for the benefit of those whose stories don’t make the headlines. A recent Pakistani editorial correctly stated that “foreign policies are not framed to satisfy national honour but to create situations of national advantage where national honour is indirectly upheld.” Killing Sarabjeet Singh or letting Khaleel Chisty who turned 80, rot in jail till he dies, will not serve the interests of either country. With both nations heading for elections in the near future and given the current political uncertainty prevailing in Pakistan, it is incumbent upon today’s leadership to seize every available consensus building opportunity. If we lose this momentum, one doesn’t know when such an opportunity may appear again and whether it will be in the lifetime of those who spend their days in a prison cell living in anticipation and on hope.
Satvik Varma is an advocate at the Supreme Court of India and Delhi High Court.
First Published in Open Magazine July 23rd, 2012 Edition.