Thursday, November 19, 2009

In pardoning criminals, you betray their victims

At the time of the national and state assembly elections, earlier this year, an NGO provided considerable detail to show that our legislative assemblies and parliament had come to be populated by a disproportionately large number of millionaires. The implication is that the legislatures are now skewed towards the interests of the well off.

Coincidence or not, it now seems apparent from the revelations of the Manu Sharma episode that our criminal justice system, too, favours the the rich and powerful. Even if you are convicted of rape and murder, if you have the right connections, not only can you manage the occasional parole, but actually receive a signed and certified pardon from the state.


It is true, of course, that with access to good (read expensive) lawyers the rich do have an advantage when it comes to facing the criminal justice system. But they face the same procedures, judges and the law as do the poor. Indeed, the rich and the powerful, too, get convicted, despite their best, and often questionable, efforts to get off.
The conviction of Sharma himself, the son of an influential and rich politician, Vikas Yadav, the son of a powerful West Uttar Pradesh politician, Sanjeev Nanda, former police officer R.K. Sharma have been pointers towards this. But this is where the script changes. Even though they are convicted and liable for the same punishment, the rich, even those guilty of heinous crimes, manage to systematically cheat punishment through paroles, sentence remissions and, worse, outright pardons. The blame for this shameful and amoral situation rests squarely on our bureaucratic and political class.

Why not pardon him as well ? Mohammed Afzal, convicted in the Parliament House attack case

On January 15, 1999, Sriyans Kumar Jain, a Bharatiya Janata Party activist whose life sentence for murder had been upheld by the Supreme Court, put in a mercy petition to the Haryana state government which on January 20, recommended the case to the governor of Haryana, Mahabir Prasad. By January 25th, Jain had gotten his pardon. At the time the government in the state was run by Bansi Lal and the Haryana Vikas Party which was allied to the BJP. Jain had been convicted for the murder of Krishan Kant Khandewala, a Congress municipal councillor of a small town called Hansi in 1987. He was an aide of BJP MLA P.K. Chaudhry who wanted to defeat Khandewala in the elections for the chairmanship of the town’s municipality.pardon shocked Khandewala’s family. This was not a mere commutation of a sentence. It was an actual pardon, under Section 161 of the Constitution and Section 432 of the Criminal Procedure Code, nullifying the original sentence. Subsequently the hapless family was pressured to avoid pressing an appeal in the case.
In July 1999, the successor Om Prakash Chautala government outdid the Bansi Lal largesse. By 2001 it had already pardoned ten convicted criminals. Among them were the killers of Jasbir Singh, a student leader. A sessions court initially acquitted the accused — Sat Parkash, Satbir, Himat and Devinder Singh, but a Supreme Court Bench comprising Justices K.T. Thomas and M.K. Mukherjee set aside the order and sentenced the first two to life imprisonment and the others to lesser terms. All of them were party activists belonging to Chautala’s Indian National Lok Dal and three months after assuming office, Sat Parkash and Satbir were pardoned and the others a short while later.
Neighbouring Punjab’s record is no better. Six years after their son was shot, Bathinda farmer Jagroop Singh and his wife Kartar Kaur thought that justice had been delivered when three accused were given a life sentence by a sessions judge. So confident was Sandeep Singh, the main accused, that his family did not bother to file an appeal; it merely petitioned the governor S.F. Rodrigues who granted a pardon to him. Singh is the son of former Akali minister Teja Singh, who later joined the ruling Congress.


Why blame the northern states? Last September, in a grand gesture, Tamil Nadu released nearly 1500 prisoners to celebrate the anniversary of DMK founder C.N. Annadurai’s birth. Among them were lifers who had already served seven years of their sentence. The state justified its action, though you can be sure that among those pardoned were murderers, rapists and other reprehensible people. This act of criminal generosity was followed up by the Andhra Pradesh government this year which released nearly 1000 people, mostly lifers, citing Gandhi Jayanti as a pretext. Its attempt to free G Venkata Reddy, a Congress activist was quashed by the Supreme Court in 2006 on procedural grounds.
The concept of pardon is a feudal leftover of the divine right of kings who could not only take a life, but grant one merely on whim. This system has been inherited by India through Article 72 of the Constitution which allows the President to grant a pardon, or remission of punishment of any convict. But the president cannot act on whim and must be guided by the Home Ministry and the Council of Ministers.
But while the President is so constrained, there seems to be no check on our governors who operate under the radar, as it were, to free convicted murderers or give dangerous criminals parole at will, or at the instance of our politicians.


Given instances of wrongful conviction, it is important to have pardoning power in the constitutional system, but its gross misuse by our politicians and bureaucrats requires that it be vested in a judicial body. As a rule, there should be no pardon for violent assault, murder or rape. If an arrest or conviction was bad in law, surely our court system can set that right. Executive intervention is, more often than not, based on extraneous considerations.
The Supreme Court has generally upheld the state’s right to pardon criminals or remit their sentences. This, as various officials who have testified to counter petitions opposing the pardons, is as per the law and the Constitution. The case is often couched in the language of rehabilitation of the criminals. But what of society at large? What about the victims? Is their any consideration that a convicted rapist could rape again or a pathological killer kill? Doesn’t society deserve protection against violent criminals?
Remarkably, neither the executive nor the judiciary has ever bothered to consider the rights of the victims. A person who has been murdered can only depend on the state for judicial revenge. But the state is betraying the interest of the victims by freeing prisoners who have served only a part of their sentence.
The government is supposed to protect the life and liberty of the people of the country. When it fails to do so, it is responsible for ensuring that those guilty of depriving a citizen of his or her life is punished.
But what we are seeing is that large sections of the political and bureaucratic class have lost their moral compass. Instead of care and compassion for the victims of the crimes, they are showing sympathy and kindness to their killers.
This appeared in Mail Today November 13, 2009

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