first published in The Sunday Statesman Editorial Page
October 14, 2006
There is a difference between law and equity (or natural justice). The power of pardon is an equitable power. Commuting a death-sentence is a partial pardon By SUBROTO ROY
“Fiat justitia pereat mundus” ~let justice be done even if the world shall perish ~ is a maxim only Immanuel Kant among the great philosophers may have wished to maintain. Yet it serves to remind us that there exist wrong reasons for carrying out as well as wrong reasons for not carrying out the death-sentence on Afzal Guru. Wrong reasons for carrying out the death-sentence include saying that only by his death will families of the victims of the Parliament attack receive satisfaction (justice is hardly the same thing as revenge) or that only thereby can the Indian Republic show itself to be standing up to terrorism. Wrong reasons for not carrying out the death-sentence include saying Afzal’s death would be seen as unjust by many people in J&K and result in further civil or political turmoil there or elsewhere, or that more terrorism will result.
Justice should be done and be seen to be done to Afzal by the Indian Republic ~ here as elsewhere, justice is a matter between an individual and the State. The question remains open whether such justice involves his death or his imprisonment for life or even his being paroled in due course. Unlike Praveen Mahajan for example, Afzal has not committed premeditated first-degree murder or parricide. He is from an Indian State where there has existed some separatist sentiment for decades, and evidently he has been an accomplice to an act of war against India involving attempted kidnapping or mass murder. If he is an Indian national, he may have been treasonous and seditious; if he is a Pakistani national or wishes to be treated as such, he may have been some kind of spy, agent provocateur or saboteur, or an accomplice of such people. The moral question before India today has to do with what precisely is the nature and quality of justice to be dispensed in this particular case, in these particular factual circumstances as far as presently known, given all the principles, precedents, rules and laws available.
Someone may fairly wonder how or why it is possible the President of India has any discretion at all left to commute a sentence of death once the judiciary up until the Supreme Court of India has spoken. The answer has to do with the subtle distinction that is still made in common law countries like Britain, the USA and India between law and equity or “natural justice”. Britain ever since the 13th Century has had an institution known as “Lord Chancellor” in whose person came to be combined the highest judicial and executive roles (Tony Blair’s New Labour Government is due to abolish it). “Chancery” or courts of equity traditionally were parallel to courts of law, recognising that normal legal processes may cause justice to sometimes fail (especially in corrupt times) and hence require direct executive intervention. In the United States today, equity is embodied in Rule 60(b) of the Federal Rules, and federal courts are empowered to oversee all other courts including themselves for violations of natural justice.
By way of example having nothing necessarily to do with capital punishment, “solicitation of counsel, clerks or judges” is embracery curialis, recognized as extrinsic fraud and subversion of justice since Jepps 72 E R 924 (1611), “firmly established in English practice long before the foundation” of the USA, Hazel Atlas, 322 US 238 (1943). “Embracery is an offense striking at the very foundation of civil society” says Corpus Juris 20, 496. A court of equity has inherent power to investigate if a judgement has been obtained by fraud, and that is a power to unearth it effectively, since no fraud is more odious than one to subvert justice. Cases include when “by reason of something done by the successful party… there was in fact no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as … where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side ~ these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing….” Hazel Atlas. Fraud on the court includes that “perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication” Moore’s Federal Practice 60-360.
Equitable action under Rule 60(b) can vacate judgment whenever such action is appropriate to accomplish justice. (In contemporary American federal judicial processes at least in the present author’s experience over two decades, this rather subtle branch of jurisprudence may have become known, however, more in its breach than fulfilment).
The power of pardon is one such supra-legal equitable power of the executive authority. For a state’s chief executive to pardon a crime is to release someone of guilt or to remit punishment. In Britain, the power is with the Government’s Home Office and in the old Commonwealth it was delegated to the Governor-General. In the USA it is a power of the President or State Governors to pardon crimes, and the most famous case was that of President Gerald Ford pardoning his predecessor Richard M. Nixon. Pervez Musharraf recently pardoned A Q Khan. Both highlight the fact the power of granting a full pardon is to be exercised rarely, and may be justifiable only on grounds of “Reasons of State” where someone has done something unlawful which the State is willing to condone for sake of some greater good in the national interest. But a pardon also can be partial, requiring the offender fulfil a condition such as serving a lesser substituted punishment. Commuting a death sentence by requiring the offender to serve life in prison is this sort of conditional pardon.
In India today, the President under Article 72 of the Constitution is empowered “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute” a sentence of death and also intervene in other cases. Article 161 gives a lesser power to State Governors. These are singular examples of the acknowledged presence of equity in modern Indian jurisprudence, though our customary laws remain a vast untapped source of natural justice, (viz. Tagore Law Lectures 1905-1906 by SN Roy). Just last week, a Supreme Court bench of Justice Arijit Pasayat and Justice SH Kapadia ruled the power of reprieve, pardon or remission of sentence may not be exercised for “political considerations or on the basis of religion, caste or other extraneous factors”. There must be bona fide valid reasons. The bench set aside an Andhra Pradesh order passed by a Governor from the Congress Party remitting the sentence of imprisonment awarded to a Congress leader in a murder case involving a Telegu Desam Party victim. In an egregious violation of his discretion, the Governor had said the sentence already undergone was sufficient and directed release, but the Supreme Court in November 2005 admitted a petition challenging the order and stayed it. The Court has now held that exercise of the power is subject to judicial review and it may not be exercised for extraneous, political or mala fide reasons. The Court has thereby enlarged its role in equity (or natural justice) similar to that which American federal courts have had under Rule 60(b). There is also an argument for abolishing Article 161.
In cases of equitable treatment of capital punishment in India today like that of Afzal (or Dhananjay before him), the fact the Executive has notoriously starved our Judiciary of adequate resources ever since Independence (The Statesman, 26 February 2006) also may not be something irrelevant to evaluating the likelihood of a mistake having been made. All things considered, if justice is to be done and seen to be done in Afzal’s case, the Indian Republic should be in no hurry whatsoever in deciding to either execute him or to even release him.
From Facebook 31 March 2014
Why was Afzal hanged in such a hurry and almost in secret? Why did the BJP bay for his death so loudly every day, getting the Congress scared they would lose an election if they did not? Competitive foolishness just as over Telengana. Afzal had not pulled any trigger. That it was an avoidable injustice is made apparent by the Supreme Court commuting the death sentences of other political murderers, including Rajiv Gandhi’s killers and now Bhullar…
From Facebook 24 November 2012
I did not think Kasab should have been hanged principally as it was on the basis of his evidence that India cracked the case and he deserved some jurisprudential credit for that. He was the star witness for the prosecution against the terrorist masterminds who had sent him. Separately, I also do not believe, all things considered, that Afzal should be hanged, though there may be nothing defective in law against his conviction and sentence and he has had some legal bad luck. The law of pardon or commutation is of an equitable nature, beyond the normal law itself…His cooperation with the police would be the reason for his life to be spared — besides the fact that he pulled no trigger to kill anyone himself nor caused anyone else to do so.
From Facebook August 12 2011:
Subroto Roy has now for the first time been able to read the Supreme Court judgement affirming Afzal Guru’s death sentence, commuting Shaukat’s, and affirming the acquittal of Gillani. It does not seem defective in law. Afzal Guru was perhaps misrepresented by lawyers or misled himself into confessing his crimes very early on. But hand-in-glove with the murderous terrorists he certainly appears to have been. The fact he helped the police with his confession may be the only equitable reason for the President to commute the sentence.
Montesquieu’s Spirit of the Laws outlined a doctrine that applies to India, the USA and all constitutional democracies: there is no monopoly of political wisdom.
By SUBROTO ROY First published in The Sunday Statesman, The Statesman Editorial Page,
Special Article Feb 12-13 2006
The Speaker’s noble office is that of the single member of the House, traditionally chosen by unanimity, whose task it is to self-effacingly maintain order in Parliamentary debate and proceedings, so that the House’s work gets done. C’est tout. Once chosen Speaker, he ipso facto retires from partisan politics for life. The Speaker neither contributes to the substance of Parliamentary debate (except in the rare case of a tie) nor has to feel personally responsible for Parliament’s conduct.
Our Parliament has tended to become so dysfunctional since Indira Gandhi and her sycophants destroyed its traditions 30 years ago, that supervising its normal work is an onerous enough task for even the finest of Speakers to handle.
The Lok Sabha’s incumbent Speaker has tended to see himself as the champion of Parliament. He need not. He does not command a majority in the Lok Sabha; the Government Party does. We have had the oddest peculiarity unfolding in India at present where the person who does command the Lok Sabha’s majority, and therefore who would be normally defined as Prime Minister of India, has chosen to nominate someone who is not a member of the Lok Sabha to act as Prime Minister, i.e. to command the Lok Sabha’s majority. (The Rajya Sabha was and remains irrelevant to most things important to Indian democracy, regardless of its narcissism and vanity). Someone with access to 10 Janpath should have told Sonia Gandhi in May 2004 that if she did not wish to be PM and wanted to gift the job to someone else, she should do so to someone who, like herself, had been elected to the Lok Sabha, like Pranab Mukherjee (elected for the first time) or Kamal Nath or Priya Ranjan (both veterans).
Manmohan Singh, a former Lok Sabha candidate, may as Finance Minister have been able to progress much further with economic reforms. But sycophancy has ruled the roost in the Congress’s higher echelons, and nobody had the guts to tell her that. Indeed as early as December 2001, Congress leaders knew that in the unlikely event they won the polls, Manmohan Singh would likely be PM by Sonia Gandhi’s choice (though he was not expected to last long at the top), and yet he did not contest the Lok Sabha polls in 2004.
The Government of the day, not the Speaker, is Parliament’s champion in any discussion with the Supreme Court over constitutional rights and Separation of Powers. And the Government has in fact quietly and sensibly requested the Supreme Court to set up a Constitutional Bench for this purpose. Such a Constitutional Bench shall have cause to ask itself how far Kesavananda Bharati needs to be tweaked if at all to accommodate the contention that Parliament has a right to judge its own members. The Court may well likely say that of course Parliament has a right to judge its own members but even that right is not an absolute right, (nothing is). Even Parliament’s right to judge its own members must be in accordance with natural law, with principles of justice, with due and clearly defined processes. E.g. the established Privileges Committee and not the ad hoc Bansal Committee had to do the needful.
Imagine a hypothetical case of fantastic fiction where half a dozen independent MPs are elected to a future Lok Sabha, and then take it upon themselves to expose corruption and shenanigans of all major political parties. Our fantastic super-heroes become whistleblowers within Parliament itself while remaining totally incorruptible as individuals — like Eliot Ness’s team who jailed Al Capone and other gangsters, and came to be depicted in Hollywood’s The Untouchables. These Untouchables would come to be feared and despised by everyone from Communists on one side of the political spectrum to Fascists on the other. They would upset everybody precisely because they were so clean and were not purchasable. The Government and Opposition of the day might wellgang up to expel such troublemakers and even fabricate charges to do so. (Now there’s a script for a Bollywood movie!)
What our Supreme Court’s Constitutional Bench decides now in the matter at hand will determine the fate of our super-heroes in such a future fantasia. The present case is a polar opposite — where MPs have been caught on camera with their sordid fingers in the cookie-jar, and then made to walk the plank immediately by their peers. Yet natural law applies here as it will to our fantastic future fighters, and this is what the Bench would have to speak on.
Why the present situation continues to be disconcerting is because the whole country heard all the holier-than-thou protestations, yet everyone continues to take a very dim view of what they see of politicians’ behaviour. There remain strong suspicions that only a few very tiny tips of very large icebergs were or can be caught on camera. Large-scale deals and contracts involve payments into invisible bank accounts, not petty cash into pockets or even suitcases filled with cash sloshing around Delhi.
What we have desperately needed in the situation is modern prime ministerial leadership which could intelligently and boldly guide national debate in the right direction on the whole matter of probity in public life. Why a distinguished parliamentarian like the Speaker has found himself in the limelight is because neither the de jure nor de facto Prime Ministers of India are anywhere to be seen thinking on their feet on these central issues of constitutional procedure and practice. They tend to use prepared scripts and may be temperamentally disinclined to do what has been called for by these unscripted circumstances. (Indeed the much-maligned H. D. Deve Gowda could be alone among the bevy of recent PMs who has been able to think on his feet at all.)
Collapse Before Executive Power
In the meantime, the United States is going through its own Separation of Powers’ crisis. As explained in these columns previously, the American system is distinctly different from the British, and our own system is midway between them. Yet similar principles may be discerned to apply or fail to be applied in all.
Winston Churchill once perspicaciously observed:
“The rigid Constitution of the United States, the gigantic scale and strength of its party machinery, the fixed terms for which public officers and representatives are chosen, invest the President with a greater measure of autocratic power than was possessed before (the First World War) by the Head of any great State. The vast size of the country, the diverse types, interests and environments of its enormous population, the safety-valve function of the legislatures of fifty Sovereign States, make the focussing of national public opinion difficult, and confer upon the Federal Government exceptional independence of it except at fixed election times. Few modern Governments need to concern themselves so little with the opinion of the party they have beaten at the polls; none secures to its supreme executive officer, at once the Sovereign and the Party Leader, such direct personal authority.”
America’s Legislative Branch has, on paper, strong powers of advice and consent to control errors, excesses or abuse of power by the Executive President. But (with rare and courageous exceptions like Sen. Robert C. Byrd of West Virginia) the Legislature cravenly collapsed before the father-son Bush presidencies in regard to the Middle East wars of recent years. America’s once-revered federal judiciary has also tended to lose its independence of mind with overt politicisation of judicial appointments in recent decades.
Bush the First went to war against Saddam Hussein (a former American ally against Islamic Iran) at least partly with an eye to winning re-election in 1992 (which he would have done as a result but for a random shock known as Ross Perot; Bill Clinton became the beneficiary). Bush the Second obsessively wished to follow up on the same, to the point of misjudging the real threat to America from Bin Laden and fabricating a false threat from an emasculated Saddam.
America’s Legislature palpably failed to control her Presidents. Now, late in the day, after all the horses have bolted, the Senate Judiciary Committee began tepid hearings on February 5 2006 into whether the President authorized laws to be broken with impunity in regard to wire-tapping some 5,000 citizens (doubtless mostly non-white and Muslim) without judicial warrants. Republican Senator Arlen Specter, the Committee’s Chairman, has said he believes the Foreign Intelligence Surveillance Act has been “flatly” violated, and “strained and unrealistic” justifications are now being offered. Bush’s men, from his Vice President and Attorney General to political intelligence operatives, have brazenly placed in the dustbin the traditional principle fiat justitia pereat mundus — let justice be done even if the world perishes — saying that the Sovereign can do just as he pleases to save the realm from external enemies as he might perceive and define them to be.
What this kind of collapse in current American practice reveals is a new aspect unknown at the time of Montesquieu’s Spirit of the Laws. In the modern world, Separation of Powers involves not merely constitutional institutions like Executive, Legislature and Judiciary but also the normal civil institutions of a free and open society, especially academic institutions and the press. In America, it has been not merely the Legislature and Judiciary which have tended to collapse before Executive Power in regard to the recent Middle East wars, but the media and academia as well.
“Embedded reporters” and Fox TV set the tone for America’s official thought processes about Iraq and the Muslim world — until it has become too late for America’s mainstream media or academics to recover their own credibility on the subject. On the other hand, unofficial public opinion has, in America’s best traditions, demonstrated using vast numbers of Internet websites and weblogs, a spirited Yankee Doodle individuality against the jingoism and war-mongering of the official polity.
Neither the press nor academia had collapsed the same way during America’s last major foreign wars in Vietnam and Cambodia forty years ago, and it may be fairly said that America’s self-knowledge was rather better then than it is now, except of course there were no Internet websites and weblogs.
Our Pakistani Cousins Across the border from us, our Pakistani cousins are, from a political and constitutional point of view, cut from the same cloth as ourselves, namely the 1935 Government of India Act, and the Montague-Chelmsford and Morley-Minto reforms earlier. However, ever since Jinnah’s death, they have refused to admit this and instead embarked haplessly on what can only be called an injudicious path of trying to write a Constitution for a new Caliphate. The primary demand of the main scholars influencing this process was “That the sovereignty in Pakistan belongs to God Almighty alone and that the Government of Pakistan shall administer the country as His agent”. By such a view, in the words of Rashid Rida and Maulana Maududi, Islam becomes “the very antithesis of secular Western democracy. The philosophical foundation of Western democracy is the sovereignty of the people. Lawmaking is their prerogative and legislation must correspond to the mood and temper of their opinion… Islam… altogether repudiates the philosophy of popular sovereignty and rears its polity on the foundations of the sovereignty of God and the viceregency (Khilafat) of man.” (Rosenthal, Islam & the Modern National State, Cambridge 1965.) Pakistan’s few modern constitutionalists have been ever since battling impossibly to overcome the ontological error made here of assuming that any mundane government can be in communication with God Almighty. In the meantime, all normal branches of Pakistan’s polity, like the electorate, press, political parties, Legislature and Judiciary, have remained at best in ill-formed inchoate states of being — while the Pakistan Armed Forces stepped in with their own large economic and political interests and agendas to effectively take over the country and the society as a whole, on pretext of protecting Pakistan from India or of gaining J&K for it. Pakistan’s political problems have the ontological error at their root. Pakistan’s political parties, academics and press, have with rare exceptions remained timid in face of the militaristic State — directing their anger and frustration at an easier target instead, namely ourselves in India. The Pakistan Government’s way of silencing its few political, academic or press dissidents has been to send them into comfortable exile abroad.
Sheikh Abdullah Contrasted Pakistan’s perpetual constitutional confusion deserves to be contrasted with the clarity of Sheikh Mohammad Abdullah’s thinking, e.g. his 5 November 1951 speech to the Constituent Assembly of J&K: “You are the sovereign authority in this State of Jammu & Kashmir; what you decide has the irrevocable force of law. The basic democratic principle of sovereignty of the nation, embodied ably in the American and French Constitutions, is once again given shape in our midst. I shall quote the famous words of Article 3 of the French Constitution of 1791:- ‘The source of all sovereignty resides fundamentally in the nation. Sovereignty is one and indivisible, inalienable and imprescriptable. It belongs to the nation.’ We should be clear about the responsibilities that this power invests us with. In front of us lie decisions of the highest national importance which we shall be called upon to take. Upon the correctness of our decisions depends not only the happiness of our land and people now, but the fate as well of generations to come.”
Contrasting the Pakistani views of constitution-making with those of Sheikh Abdullah may help to explain a great deal about where we are today on the delicate and profound subject of J&K. (See “Solving Kashmir”, The Statesman, December 1—3, 2005)
India’s current debate about Separation of Powers needs to keep at a distance the clear negative examples of our American friends, who have brought upon themselves in recent times a craven collapse of Legislature, Judiciary, press and academia to the Executive President (as Churchill had seemed to predict), as well as of our Pakistani cousins who have continued with general political and civil collapse for half a century. Because our universities are all owned by the State, India’s academics, from Communist to Fascist, have tended to be servile towards it. In respect of the press, the power of independent newspapers has been dwindling, while the new TV anchors have created their own models of obsequiousness and chummery towards New Delhi’s ruling cliques of the day. It thus becomes India’s Supreme Court which remains the ultimate guardian of our Constitution and the safest haven of our very fragile freedoms — besides of course our own minds and hearts.
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