Thursday, March 28, 2013

Judicial Pardon - A perspective in the light of Sanjay dutt’s pending imprisonment

Judicial Pardon - A perspective in the light of Sanjay dutt’s pending imprisonment

I have been watching with avid interest the proceedings of the impending imprisonment of Sanjay Dutt, for his alleged involvement in the terrorist attacks in Mumbai. While it is true, that Mr. Dutt is sentenced to five years minimum sentencing by the Supreme court, one needs to examine the nature of Jurisprudence and its role in regulating human behavior; as against, a mere factual interpretation and rendering of law . Whether pardon in this case should be granted or not, is something that I am not competent to assert, but as a student of History and the evolution of Human society, I do believe that no system of justice is static and inviolable. Laws are meant to evolve and adapt itself to changing times, and its principal task to keep the wheels of society well-oiled and moving within the embankments of civilized behavior. Laws are not meant only to punish, but also to reform, correct and integrate errant behavior into mainstream of society. And judicial clemency is a chief instrument for achieving that goal. Here is a short history of judicial pardon for us to ponder.

The first prominent mention of judicial pardon finds mention in the code of Hammurabi, a series of edicts that were developed in Babylon nearly 4,000 years ago, where the prescription of harsh penalties was balanced by rules to limit personal vengeance under mitigating circumstances. Such laws were feasible and practicable to apply under the absolute authority of a king, but the sprouting of democratic values in Greece presented a new set of challenges to apply such niceties of clemency. Therefore, interestingly, by the time the Athenian Civil War ended in Greece, the procedural difficulties that attended obtaining pardon in Athens were stringent and complicated that, before anyone could receive a pardon, one had to comply with the process of adeia (a democratically elected assembly), which required that at least 6000 citizens support a petition for an act in a secret poll. Not surprisingly, the approval of this many people were difficult to obtain, and hence clemency was seldom granted to individuals, at least those who were not celebrities. Thus, grants of clemency often hinged on popularity rather than concerns that a just result be reached. Later, In Roman times the unending triumphs of war gave the returning Hero, the status of Dictator for a day, with a right both to slaughter war captives and an unequivocal right to pardon them as well. Coronations and national holidays provided suitable occasions for monarchs to proclaim their generosity (A practice that is still continued in many democracies, including our own).The practicality of Asian thinking was evident in the manner in which the Han and Mauryan emperors in China and India respectively, employed the practice of issuing general amnesties as a means of procuring additional work force, or as soldiers; again, a practice that continued till the end of the second world war. However, the French and the English later on were to adopt pardon as an executive practice, although not with an intention of correcting human fallibility, but more in deference to the absolute authority of a king during those turbulent times, and not surprisingly, in France, the power to grant pardon vanished, albeit for a short period, with the French revolution of 1789, as it was deemed to be a heinous vestige of a repressive monarchy.

The above paragraph would have made it amply clear that judicial review and pardon has always been an integral part of law enforcement in various forms and shapes. In fact, the maturity of a nation is evident in the way we handle exceptions to established rules. It takes tremendous amount of national conviction to set a legal precedent that can alter the state of Justice forever. Justice Katju, makes a very important point when he say that “Justice should be tempered with mercy” – paraphrasing the immortal words of Portia in Shakespeare’s visionary play “The merchant of Venice”. Though this sentiment strikes an emotional chord within all of us, we need to be careful while enforcing this, to make sure that such sympathies do not merely extend to persons who wield popularity and power. In the case of Sanjay Dutt, it seems that he was misled into accepting arms and ammunitions, which later proved to be fatal instruments that took away innocent lives. It also seems that after having served some time in prison, he has transformed into a more mature and dignified human, than what he was before. A man’s intentions are best reflected in his actions. So, if this is the yard stick, then Sanjay has over the last two decades has lived a decent and socially acceptable life. The last thing that should be happening, is to sacrifice him on the altar of political vendetta. Let us treat him as an individual, on his own merit and give the president or Governor to decide his case. Ultimately, he may be found wanting and may well have to serve out his sentence; but that should not prevent us from allowing him a chance to be pardoned. I must agree with Justice Katju’s valiant attempt to serve the cause of justice, which he so eminently upheld during his tenure in the various courts of India.

No comments: