Maharashtra governor holds the key to Sanjay Dutt pardon

No sooner had the Hindi film star Sanjay Dutt got a five-year jail term in the 1993 Mumbai bomb blasts case, than a clamour started for his pardon.

The fact that it was none other than former Supreme Court judge and Press Council of India chairman Justice Makandey Katju who proposed the idea, makes it both ackward and interesting. Many people feel that it was beyond Katju’s call and being a former judge himself, he should have desisted from leading an ‘orchestrated’ campaign.

But the apex court’s verdict requires to be given a deeper look. The ‘minimum’ 5-year jail under the relevant provisions of the Arms Act for the actor came along with confirmation of the capital punishment for one of the masterminds of the blasts, Yakub Memon.  
The judgment in the case relating to India’s first brush with the modern-day terrorism was a matter of some relief for 10 others, who faced gallows, since the court decided to commute their sentence to life term. But those favouring clemency for Dutt want to put his case on a different footing. He was acquitted of all the charges under the TADA Act, but not the Arms Act.

Dutt confessed that he went for acquiring weapons after threats received by his family due to the relief works undertaken by his father Sunil Dutt in some Muslims-dominated areas in Mumbai in the wake of riots that followed the Babri Masjid demolition in Ayodhya in 1992. He claimed innocence in the series of bomb explosions which shook the city on March 13, 1993, leaving 257 people dead, 713 injured, besides destruction of properties worth crores of rupees.

He made a confessional statement of under section 15 of TADA on April 26, 1993 six days after his arrest upon arrival from Mauritius from shooting of a film. However, more than one year after on November 9, 1994, he retracted his confession. This fact was very well noted by the apex court, which said, “the retractions were made many months after the recording of the confession” and the statement was not “at the first available opportunity.”

The court, however, was in agreement with the findings of TADA judge, who relied on Dutt’s own confession that the weapons were not acquired for any terrorist activity but for self-defence. It also held, “The prosecution has failed to prove that the alleged arms (AK 56 and 9 mm pistol) in possession of Dutt were from the same alleged consignment (from fugitive Dawood Ibrahim and others) that was used in the said blasts.”

Not fully convinced

Thus far, he was able to clean the taint of being a terrorist. Consequently, his claim for the benefit under the Probation of Offenders Act appeared tenable. The beneficial legislation could be invoked by anyone convicted for the offence not punishable with life term or death penalty. But this was not to be. The court was not fully convinced with his averment.

Even his pleas that he got married to Manyata and subsequently was blessed with two children, who required fatherly love did not prove sufficient, leave aside, his claim for extending social service for the cause of AIDS patients and children. “The circumstances and the nature of the offence are so serious and we are of the view that they do not warrant him the benefit of the provisions of the Probation of Offenders Act. However, taking note of various aspects, we reduce the sentence to minimum period, viz., six years to five years,” the court said.

Ever since the judgment, people from different walks of life including those from film fraternity have joined hands to support Justice Katju’s contention. Many more may follow suit. In his assertion, Justice Katju quoted naval commander K M Nanavati’s case in which he was granted pardon by Maharashtra governor despite being held for murder of his wife’s paramour.

As per our Constitutional scheme of things, the governor has been given the power under Article 161 to grant pardon, reprieve or respite and to suspend, remit or commute sentence of any person. The power has to be exercised on the advice of council of ministers. But it is amenable to judicial review on limited grounds.

In a landmark verdict (Satpal v State of Haryana, 2000), the Supreme Court said the governor’s power to grant relief to convicts under Article 161 is of very wide amplitude and does not contain any limitation.

“But the said power being a Constitutional power is amenable to judicial review on certain limited grounds. The court, therefore, would be justified in interfering with an order passed by the governor in exercise of power under Article 161 of the Constitution, if the governor is found to have exercised the power himself without being advised by the government or if the governor transgresses the jurisdiction in exercising the same or if it is established that the governor has passed the order without application of mind or the order in question is a mala fide one or the governor has passed the order on some extraneous consideration,” the SC had said.

It would be interesting to see the next move in the case. Since Union law minister Ashwani Kumar indicated the possibility of the governor exercising his power in case an application was made, some voices have also been heard in dissent of Justice Katju’s view. Prominent among them is eminent jurist Mahesh Jethmalani. He feels that the governor’s power to pardon does not extend to those held guilty under the Arms Act and Sanjay Dutt being convicted of a serious offence cannot take recourse to it. Now, how the Dutt drama pans out remains to be seen.

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