Is pardon a way out?

By Mukund Padmanabhan

CHENNAI, JUNE 8. Can the Tamil Nadu Government pardon Ms. Jayalalitha and rescind both her conviction and sentence in the two Tansi cases? The suggestion has been floated by some of her supporters as a means of overcoming her electoral disqualification and extending her chief ministership beyond six months.

As things stand, the Tamil Nadu Chief Minister can remain in office only for six months unless she finds a way of contesting and winning an Assembly election during this period (Article 164). The regular legal options - such as challenging the Returning Officers' decision to disqualify her, challenging the Election Commission's 1997 order which resulted in this disqualification and seeking a quick disposal of her appeal in the Tansi cases in the Madras High Court - are regarded as time- consuming. It is doubtful whether such measures would achieve the desired result in six months. Moreover, they run the risk of resulting in judgments which could weaken rather than help her cause.

In order to circumvent such potentially lengthy and risk-ridden judicial processes, the suggestion is that the Tamil Nadu Cabinet resolves to pardon her in the Tansi cases under Article 161 of the Constitution. The Article states that the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

In the event of such a Cabinet recommendation, the Governor may be bound by such advice. Citing the Supreme Court's judgment in the Kehar Singh v/s Union of India case (1989), the constitutional expert, Mr. Anirban Kashyap, has noted that the ``power of pardon rests on the advice tendered by the Executive to the President (or the Governor) who must act in accordance with such advice.''

It is generally accepted that the effect of pardon also absolves the pardoned person not only from the penal consequences but also from any civil disqualification. In the Nanavati v/s State of Bombay case (1961), the Supreme Court noted: ``A pardon after the accused person has been convicted by the Court has the effect of completely absolving him from all the punishment or disqualification attaching to a conviction from a criminal offence.'' The constitutional expert, Mr. Durga Das Basu, has noted that ``a pardon rescinds both the sentence and the conviction''. (Introduction to the Constitution of India).

The power of a Governor under Article 161 extends to all offences, the only limitation being that such offences relate to laws to which the executive power of the State extends. The executive power of the State is co-extensive with its legislative power. It extends not only to matters or subjects enumerated in List II (the State List) but also List III (the Concurrent List) of the VII Schedule (which includes criminal law).

The executive power of the State is not deprived by the mere fact that Parliament has made a law relating to a matter governed by the Concurrent Legislative List (Durga Das Basu). Pardons under Article 161 have been repeatedly granted for offences under Central laws such as the IPC; it is not clear whether offences under the Prevention of Corruption Act have been condoned under this section before.

Would remitting Ms. Jayalalitha's sentence to less than two years, rather than a pardon be another means of overcoming her disqualification? Article 161 gives the State Government the power to remit a sentence. The power is also available under Section 432 (2) of the Cr.PC. But it is doubtful whether such executive remission would be of any help in the Tamil Nadu Chief Minister's case.

In the Sarat Chandra Rabha v/s Khagendranath Nath case (1961), the Supreme Court ruled that the Assam Government's remission of the appellant's sentence (from three years to 16 months) did not have the effect of removing his disqualification under the Representation of People Act. Making a basic distinction between judicial and executive remission, the court held that the latter merely means ``that the rest of sentence need not be undergone, leaving the order of conviction by court and the sentence passed by it untouched''.

In the Kehar Singh case, the Supreme Court held that an order granting pardon is not justiciable on merits except within certain limitations. The grant of pardon may be challenged if it is ``wholly irrelevant, irrational, discriminatory or mala fide''. Last year, the Supreme Court, in two separate cases, quashed the decisions of two Governors (of Uttar Pradesh and Haryana) who had granted pardon to two convicts.

The grant of pardon was never intended to pervert the course of justice, a point which could become relevant if it is conferred on Ms. Jayalalitha. Another question which is bound to arise is whether it violates the fundamental jurisprudential principle that an accused cannot be a judge in his/own case.

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