The Power to Pardon

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

The sovereign’s right to pardon an offender has always gone together with the concept of sovereignty and hand in hand with the sovereign’s power to punish. Before the Magna Carta the King ruled England through the Divine Right of Kings and all the powers of the State were centralised in him. The signing of the Magna Carta at Runnymede did not bring democracy to Britain, but it did lay down the principle that there is a limit to the sovereign’s power and that the feudatory aristocracy had both a share in power and could call the King to account. The importance of the Magna Carta is that from this small beginning ultimately grew the magnificent tree of parliamentary democracy in which sovereignty meant the right to reign but the authority to govern passed to be people through their representatives. It also foreshadowed the concept of separation of powers between the Executive, the Legislature and the Judiciary. Now the King’s justice fell within the domain of judges who, though appointed by the King, were independent, administered the law impartially and were not accountable to the Executive in any way. In India the separation of powers is given in the Constitution itself and the power to judge an offender, to hold him guilty or otherwise and to award punishment on conviction vests only in the judge. The sovereign, as personified by the ruler or, in the case of a republic, by the President, no longer personally punishes an offender because that power does not vest in him. Unfortunately even after such separation there is really no finality of a judicial order in a criminal case because even today the power to pardon, remit or commute or suspend the sentence given by a court vests in the Executive as personified by the President or the Governor. This anachronistic practice in which the Executive is virtually able to nullify a judicial order in a criminal case dates back to a period when the King was an absolute ruler. Can such a practice be carried over into a democratic polity?

Article 72 of the Constitution gives the power to the President to grant pardon, reprieve, respite or remission of punishment and to suspend, remit or commute the sentence of any person convicted of an offence in (1) a case tried by court martial (2) a case relating to a law to which the executive power of the Union extends. (3) the sentence awarded is of death. Under Article 161 the Governor enjoys similar and concurrent powers in all matters pertaining to a law to which the executive power of the State extends, or a case in which the death sentence has been awarded. In exercising powers under Articles 72 and 161 the President or the Governor, as the case may be, does not act according to his own discretion. Under Article 74 of the Constitution the President is required to exercise his functions and act in furtherance thereof on the aid and advice of the Council of Ministers. This applies mutatis mutandis under Article 163 to the Governor of a State. In deciding a matter of pardon, etc., under Article 72 and 161 the President or the Governor will mandatorily act according to the advice so rendered and this means that the exercise of powers under Article 72 and 161 will be coloured by political considerations and not necessarily be based on merit.

Sections 432 to 435 Cr.P.C. give the power to pardon, etc., to the appropriate government, Union Government in the case of a law to which the executive power of the Union extends and the State Government in the case of a law to which the executive power of the State extends. As per the Rules of Business of the Executive Government framed under Article 77 and 166 of the Constitution, all orders are to be issued in the name and on behalf of the President or the Governor as the case may be and here, too, the decision to pardon, reprieve, remit or commute a sentence would not necessarily be based on the merits of the case but rather on its politics.

Let us try and understand the process by which a person is held guilty, convicted and then sentenced. The report of the commission of a cognisable offence is required to be reduced to writing under section 154 Cr.P.C. by the officer incharge of a police station or an authorised police officer, with such report being entered in a book to be kept for this purpose as prescribed by the State Government. Such information is called the First Information Report (FIR). The police officer in a police station has no alternative but to register every complaint or report because the law gives him no other option. Thereafter under section 156 the police acquires the power to investigate a cognisable case. Section 157 Cr.P.C gives the procedure for investigation. Under section 157 (1) (b) the officer incharge of a police station, if he is convinced that there is no sufficient ground for entering into an investigation may, after recording the reasons in writing, decide not to proceed with investigation. Other than such a contingency the police is required by law to proceed with investigation and for that Chapter XII Cr.P.C. gives adequate powers to the police. Ultimately under sections 170 and 173 Cr.P.C the police is required to submit either a challan before a Magistrate if prima facie the case is established against an accused person or persons or, if no such case is made out, then to file a final report before the Magistrate concerned and seek permission to close the case.

What this means is that the proceedings prior to the trial fall within the domain of the Executive, which operates through the police or any other investigating agency created by law. For example, forest officials under the Forest Act have the power to investigate an offence relating to the forest or wildlife and can themselves prosecute the case before a court having jurisdiction. However, once the challan is submitted chapters XIV, XVI, XVII, XVIII, XIX, XX, XXI, XXI (A), XXII and XXIII and XXIV Cr.P.C. apply and the matter passes into the domain of the judiciary. All these chapters together with Chapters XXV, XXVI, XXVII and XXVIII lay down a very elaborate procedure of trial, recording of evidence and arrival at a judgement about innocence or guilt, followed by conviction and sentencing. All evidence is recorded strictly in accordance with the provisions of the Indian Evidence Act, which is very well and tightly structured and enables the court to filter out all evidence which is irrelevant, hearsay or lacking in credibility. The matter does not end here because every death sentence given by a Court of Session has to be submitted for confirmation to the High Court having jurisdiction. There are elaborate provisions for appeal, revision and review and where there is a sentence of death the High Court can certify that the case is fit for leave to appeal to the Supreme Court.

Under Indian law, which follows Anglo Saxon Jurisprudence, a person is deemed to be innocent till proved guilty. The burden of proof, that is, proving beyond the shadow of a doubt that an accused person has committed the offence of which he is charged, rests on the prosecution. The accused does not have to prove his innocence. Under Article 20 (3) a person accused of an offence cannot be compelled to be a witness against himself, which means that constitutionally a court is debarred from drawing any adverse inference against an accused person because he refuses to subject himself to the rigours of examination as a witness. So far as the death sentence is concerned the Supreme Court has on several occasions stated that it must be awarded in the rarest of rare cases, which is why trial courts are very reluctant to sentence a person to death.

The entire judicial process is weighted heavily in favour of the accused. The plethora of judicial filters through which the trial passes, including the right of appeal, is such that, provided the court has strictly followed what is stated in the Indian Evidence Act, it is virtually impossible to wrongfully convict a person of an offence that he did not commit. Let us take the cases of two persons who committed heinous offences in which many innocent lives were lost. The first relates to Afzal Guru who masterminded an attack on Parliament which, though not successful in killing a large number of parliamentarians still led to the murder of nine innocent people, including five policemen and the killing of five terrorists by the security forces in defence of parliament. The case was investigated by the police, which was able to establish a virtually irrefutable prima facie case against Afzal Guru. The matter was tried by the Court of Sessions, which held Afzal Guru guilty and sentenced him to death. The death sentence was confirmed by the High Court, which also rejected Afzal Guru’s appeal. The Supreme Court, in rejecting the appeal of Afzal Guru, gave a concurrent finding with the order of the Court of Session and the High Court. Three courts in ascending order unanimously held Afzal Guru guilty of the offence as charged and upheld his death sentence. Despite this Afzal Guru moved a petition for commutation of the sentence to life imprisonment and the Government of India sat on it for almost eight years. Where is the justification for this? One could guess what went on in the mind of government. Afzal Guru hailed from Kashmir and government did not want to alienate any element of Kashmiri society, including separatists and militants, by executing Afzal Guru. At the same time had government commuted his sentence there would have been a national uproar and this, too, government did not want to risk. Perhaps it was felt that if one just kept the matter pending long enough the outrage would subside and people would forget. Could or should the family of the five slain policemen either forget or forgive? What is more, by not executing a person who had attacked the very base of our democratic polity, the Parliament, what sort of message was government sending to other would be terrorists and militants? Obviously the message would be that you can do anything you like in India and we shall not exact from you the ultimate price for your crime. Partly, of course, there was also the consideration that the accused was a Muslim and the party in power is trying to woo Muslim votes. This is the supreme insult that the government could inflict on the Muslims because it was virtually stated that government was sparing a terrorist who happened to be Muslim and this should please the Muslims because they in any case supported terrorism by Muslim. The fact is that no Muslim likes terrorism in India and the Indian Muslim is like every other Indian, loyal to his country, desirous of law and order and eager to participate in and share the fruits of development.

The other case is of Ajmal Kasab who, together with his companions, killed more than 166 people in Bombay in 2008. He was tried, convicted and given all the opportunities of appeal as available to any other citizen, despite the fact that he was a Pakistani. It took three years for the sentence against him being executed and it became possible only because he was not an Indian and the government felt that hanging him would not have any adverse implications. His case for commutation also went to the President and had circumstances been different, who knows this mass murderer might also have been spared. I have given these two cases because it was politics which was the determinant of whether or not the judicial order was to be implemented. In the case of Afzal Guru had government not feared a massive Hindu backlash he might still have been pardoned. Thus politics would have determined whether a judicial decision would be final or not.

When the Executive exercises authority to pardon, etc., a convicted criminal it does so on the basis of what? There is no procedure laid down whereby the Executive can weigh up the decision of the Judiciary and then decide whether to give a pardon, commute or remit a sentence, suspend a sentence or otherwise decide in favour of the convict. The judgement of the court or courts could be nullified by executive order because that is what virtually happens when powers under Articles 72 and 161 of the Constitution or sections 432 to 435 Cr.P.C. are exercised by the Executive. This means that the executive decision can be arbitrary, obtained through corruption or decided by the whimsy of wayward politicians or civil servants. This is not the scheme of our Constitution and it militates against the very principle of governance in a society of laws. Even in recent cases we have seen how at different times the Home Minister argued that delay takes place because cases have to be dealt with seriatim and cases required detailed examination. Then when Ajmal Kasab jumped the queue government offered some weak excuses and in the case of Afzal Guru the government did not have a leg to stand on because there were other cases older than that of Afzal Guru pending a decision on clemency. In other words, government by its own actions proved that it is arbitrary. How can there be arbitrariness in a democratic polity and in a society of laws?

My own view is that in order to go strictly according to the separation of power and to strengthen such separation Articles 72 and 161 of the Constitution should be done away with. Similarly sections 432 to 435 Cr.P.C should be modified so that whereas the general power to remit, reprieve. commute, stay, etc., a sentence should be done away with, a person awaiting execution of a death sentence or undergoing life imprisonment in which the term of imprisonment is the entire life and not a shorter period of fourteen or twenty years, may be allowed one petition in his lifetime, which may go before an Authority which will not be subject to the Executive. The composition of this Authority could be as under:

1. In all matters in which imprisonment for life or death sentence have been awarded under a law which comes within the purview of the executive power of the Union, the Authority should consist of a sitting judge of the Supreme Court nominated by the Chief Justice of India, the Chief Justice of the High Court in whose jurisdiction the trial and conviction took place, a judge of another High Court nominated by the Chief Justice of India, the Chairman of the National Human Rights Commission or a member nominated by him, the Attorney General and the Chairman of the Supreme Court Bar Council.
2. Where the sentence has been awarded under a law to which the executive power of the State extends the Authority may consist of the Chief Justice of the High Court under whose jurisdiction the trial took place, a Judge of another High Court nominated by the Chief Justice of that High Court on invitation by the Chief Justice of High Court having jurisdiction, the Chairman of the State Human Rights Commission or a member nominated by him, the Advocate General of the State and the Chairman of the State Bar Council.Without sitting in judgment over the decision of the court or courts concerned, the Authority may recommend whether considering the special circumstances of the convict, his background, his family situation or any other good cause to be recorded in writing, the death sentence may be commuted to life imprisonment or the full lifetime clause of the life imprisonment be reduced to twenty years or fourteen years. The advice of the Authority would be binding on the President or the Governor, as the case may be. No other power of remission, reprieve, suspension, commutation or pardon should be vested in the President, in the Governor or the appropriate government. The only exception to this would be where on account of a treaty obligation or in the course of international negotiations the Government of India and a foreign government reach an agreement about a prisoner in a case where there are international ramifications. In such cases the matter may be placed before Parliament in which the two Houses, by resolution, may permit government to go ahead with what has been agreed to during international negotiations. Here the sovereign power of the State may be exercised, but totally hedged in either by the recommendation of an Authority which is virtually judicial by nature or a resolution of Parliament. Other than this the Executive should have no power whatsoever to nullify through a pardon, etc., the judgment and sentence of a court of law.

The Governor, the Constitution and the Courts

Dr M N Buch 

(Visiting Fellow, VIF)

The Supreme Court of India, in a Division Bench consisting of Dr. Justice B.S. Chauhan and Mr. Justice Fakkir Mohammed Ibrahim Kalifulla, has disposed of a civil appeal filed by the State of GujaratVs. Hon’ble Justice R.A. Mehta on the question of appointment of the Lokayukta in the State of Gujarat. The sequence of events as narrated in the judgment is:-

Under the Gujarat Lokayukta Act 1986 the Governor appoints the Lokayukta as per the procedure given in the Act. As per the procedure, as stated by the Supreme Court, the Chief Minister, in consultation with the Chief Justice of the Gujarat High Court and the Leader of Opposition makes a recommendation to the Governor, on the basis of which the appointment is made.

The post fell vacant on 24.11.2003 and remained so for about three years. In August 2006 the Chief Minister wrote to the Chief Justice, suggesting the name of Justice K.R. Vyas. The Chief Justice concurred and the matter was sent to the Governor, who sat on it for the next three years.

In December 2009 the Secretary to the Governor requested the Registrar General of the High Court to obtain a panel of names from the Chief Justice for consideration of the Governor. About two months later the Chief Minister wrote a similar letter to the Chief Justice, who replied almost immediately suggesting the names of four retired judges.

The Chief Minister tried to consult the Leader of Opposition, who replied that the Chief Minister had no power to consult him, especially because the Governor had already initiated the process and the Chief Minister had no locus standi.

During this period the Gujarat Council of Ministers met and recommended the name of Justice J.R. Vora (retired) for appointment as Lokayukta. This suggestion was forwarded to the Governor, who again sat on it.

The Governor sought the opinion of the Attorney General about the process of consultation. He also wrote to the Chief Justice asking which of two retired judges, Justice R.P Dholakia and Justice J.R. Vora, the Chief Justice preferred.

The Attorney General opined that the Chief Justice need not suggest a panel but only one name. The Chief Justice communicated his preference for Justice R.P. Dholakia, but on the insistence of the Governor he recommended the name of Justice S.D.Dave (retired) because Justice J.R. Vora had been appointed elsewhere. Meanwhile the Chief Minister wrote to the Governor again stating that his recommendation about Justice JR Vora stood as the Hon’ble Judge had expressed willingness to be considered for the post of Lokayukta.

The Chief Justice now recommended the name of Justice R.A. Mehta (retired). The Chief Minister, on 16.6.2011, requested the Chief Justice to reconsider his recommendation because Justice Mehta was above seventy-five years of age and was also associated with NGOs and organisations known for antagonism against the State Government. The Chief Justice rejected this contention of the Chief Minister and again recommended the name of Justice R.A. Mehta. The Leader of Opposition said that he had been consulted by the Governor and approved the appointment of Justice R.A. Mehta. On 25.8.2011 the Governor issued the warrant of appointment.

I have narrated the sequence of events at length because this is a clear-cut case of all the players, but especially Governor of Gujarat, deliberately playing games according to their own set of rules and their own political agenda. For three years between 2003 and 2006 the State Government did not initiate the appointment of the successor of Justice S.M. Soni. Thereafter the Governor sat on the file for three whole years. The Governor then bypassed the Chief Minister and entered into direct correspondence with the Chief Justice and the Leader of Opposition. The Governor also chose to completely ignore the advice of the Council of Ministers and kept the Chief Minister out of the loop for appointment of the Lokayukta. The whole issue, therefore, boils down to whether the Constitution of India permits this and whether the Gujarat Lokayukta Act 1986 can permit the government to act otherwise than on the aid and advice of his Council of Ministers mandated by Article 163 of the Constitution.

In paragraph 74 of the judgment, which gives the conclusions, the Hon’ble Supreme Court has very rightly pointed out that for nine years the post of Lokayukta lay vacant because only half-hearted attempts were made to fill the post. Regarding the Governor, the Hon’ble Court has said, “The present Governor misjudged her role and has insisted that, under the Act, 1986, the Council of Ministers has no role to play in the appointment of the Lokayukta and that she could, therefore, fill it up in consultation with the Chief Justice of the Gujarat High Court and the Leader of Opposition. Such an attitude is not in conformity or in consonance with the democratic set up of government envisaged in our Constitution. Under the scheme of our Constitution the Governor is synonymous with the State Government and can take independent decisions upon his or her discretion only when he or she acts as a statutory authority under a particular Act, or under the exceptions provided in the Constitution itself. Therefore, the appointment of Lokayukta can be made by the Governor, as Head of State, only with the aid and advice of the Council of Ministers and not independently as a statutory authority”. This statement alone should have been enough for the Supreme Court to have accepted the appeal of the Government of Gujarat and set aside the appointment of Mr. Justice R.A. Mehta. However, the Supreme Court, in its wisdom, has chosen fit to rule that the Governor was wrongly advised that she could ignore the Council of Ministers, but because of the facts in this particular case, the Chief Minister was aware of the circumstances and, therefore, giving primacy to the opinion of the Chief Justice was perfectly in order. This meant that the process of consultation stood complete and the appointment of Justice R.A. Mehta could not be considered illegal.

Under Article 141 of the Constitution every judgment of the Supreme Court is a law declared by it and, therefore, is binding and must be respected by all. I accept this proposition and respect the decision of the Supreme Court in the instant case. The question remains whether this is the final say in the matter of the powers of the Governor and his constitutional position vis-à-vis the Council of Ministers. With utmost respect to the learned Hon’ble Judges who constituted the Bench, perhaps this matter should have gone to a larger Bench, preferably a Full Bench, not on facts but because a very important question of constitutional law was involved. In this behalf I would like to point out that the Gujarat Lokayukta Act 1986 is one of the worst drafted pieces of legislation it has been my misfortune to come across. Under section 3 the Governor is the appointing authority for appointment of the Lokayukta. Such appointment is to be made after consultation with the Chief Justice of the Gujarat High Court and the Leader of Opposition in the State Vidhan Sabha. In the entire Act the Chief Minister and the Council of Ministers and the Gujarat Government are not mentioned. Under these circumstances could it be interpreted that the Governor has to consult only the Chief Justice and the Leader of Opposition and that the Chief Minister has no role to play? For this purpose we shall have to go to the Constitution itself. Article 124 (2) reads, “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. Under Article 217 these provisions apply mutatis mutandis to the appointment of Judges of a High Court. Can the President, in view of the wording of Article 124, ignore the Prime Minister and the Council of Ministers in the matter of appointment of Judges? Under Article 217 in the matter of appointment of a Judge of a High Court the President is required to consult the Governor of the State also. Can the Governor make a recommendation to the President without the aid and advice of his Council of Ministers?

In order to answer the above question recourse must be had to Articles 74 and 163 of the Constitution. Under Article 74 the President shall, in exercise of his functions, act in accordance with the advice of the Council of Ministers. The provisions of Article 163 are similar. Except only where the Constitution requires the Governor to perform his functions at his discretion he, too, is required to perform his functions on the aid and advice of the Council of Ministers. An Act of the Legislature, such as the Gujarat Lokayukta Act, cannot negate these provisions of the Constitution. Despite the fact that the Gujarat Lokayukta Act does not mention the government, the Chief Minister, or the Council of Ministers, the Governor cannot act otherwise than on the advice of the Council of Ministers unless the Constitution itself requires him to act independently.

In what cases can the Governor act at his own discretion? Under Article 75, whereas the Members of the Council of Ministers are appointed by the President on the advice of the Prime Minister, he has discretion in the matter of appointment of the Prime Minister. Article 164 has similar provisions regarding the Governor and the Chief Minister. However, because under Article 75 (3) and 163 (2) the Council of Ministers is collectively responsible to the House of the People and the Legislative Assembly respectively, the President or Governor would obviously invite only that person to be Prime Minister or Chief Minister who enjoys the confidence of the House. The only discretion that the President and Governor enjoy is in how best to determine who enjoys the confidence of the House. The President and the Governor having sworn an oath to preserve, protect and defend the Constitution, would obviously reject any advice from the Council of Ministers which calls upon them to act in an unconstitutional manner. I have not come across any instance of such advice having been given by any Council of Ministers in this country. It has been stated that Mr. Fakhruddin Ali Ahmed, the then President should not have approved the proclamation of Emergency under Article 352 because under Article 352 (3) unless the decision of the Union Cabinet, that is, the Council of Ministers consisting of the Prime Minster and other ministers of cabinet rank, has been communicated to him in writing he cannot issue the Proclamation. However, once the Cabinet gives its advice in writing the President has no discretion in this behalf.

Another set of circumstances under which perhaps the President and the Governor can return a matter to the Council of Ministers is if the Council is in violation of the Rules of Business framed under Articles 77 and 166. Of course the Council of Ministers can advise amendment of these Rules and the President or the Governor has to agree.

By stretching the interpretation of the Constitution a bit, which has been done both in the case of Parliament and the State Legislatures more than once, the President or the Governor need not dissolve the House of the People or the Legislative Assembly under Articles 85 and 172 respectively on the advice of the Prime Minister or Chief Minister who has been defeated in a no confidence motion or has otherwise lost the majority in the House. In Britain, however, the convention is that the monarch must accept the advice of the outgoing Prime Minister who may have lost his majority in the House if he asks for dissolution of the House and holding of elections. However, one has to accept that there is a difference of perception about this issue in Britain and India.

The Constitution itself provides for those matters in which the Governor may exercise discretion under Article 163. Under Article 371 in the matter of the Special Development Boards in Maharashtra and Gujarat the Constitution gives special responsibility to the Governor and here he may reject the advice of his Council of Ministers. Under Article 371 A, the Governor has special responsibility with respect to law and order. Under Article 371 C, the President may give special responsibility to the Governor of Manipur in order to procure the proper functioning of a committee of the Legislative Assembly consisting of Members of the Assembly elected from the hill areas of that State. Under Article 371 F, the Governor of Sikkim has special responsibility for peace and for equitable arrangement for ensuring the social, economical advancement of different sections of people of Sikkim. Under Article 371 H, the Governor of Arunachal Pradesh has special responsibility with respect to law and order in the State. He is required to consult his Council of Ministers, but he can exercise his individual judgment, differing from the advice given to him by the Council of Ministers. In all matters other than those specified by the Constitution, the Governor has no discretion to act otherwise than on the aid and advice of his Council of Ministers. With utmost respect to the Hon’ble Supreme Court I would submit that this is a true representation of the powers of the Governor, including in the case of appointment of the Lokayukta.

There are certain other issues in which we need an authoritative judgment from the Supreme Court sitting in a Constitutional Bench. I refer specifically to the provisions of Articles 111, 200 and 201 of the Constitution. Under Article 111 or 200 when a Bill is presented to the President or the Governor for signature after being passed by the Legislature, the President or Governor is required to give his assent or return the Bill for reconsideration or amendment. In Parliament both the Houses, as also in a bicameral State Legislature and the Legislative Assembly in a unicameral Legislature, will reconsider the Bill and if it is passed by the Houses or House with or without amendment neither the President nor the Governor may withhold assent. Under Article 1, section 7 of the Constitution of the United States of America the President has ten days time in which to either assent to a Bill or return it to the Congress. In case he does not return the Bill it is deemed as assented to and if he does return the Bill and the Congress once again approves it, then the Bill is deemed to have received the presidential assent. The difference between the United States and the Indian position is that in India no limitation of time is prescribed by the Constitution within which the President or the Governor is required to either assent to the Bill or to return it to reconsideration. When Giani Zail Singh was the President of India and Rajiv Gandhi was the Prime Minister, a Bill was sent to him for assent which would have virtually brought in postal censorship. Giani Zail Singh considered this as undemocratic, but he also knew that if he returned the Bill, Rajiv Gandhi had a massive majority in Parliament and would have been able to get the Bill passed a second time. Using the provisions of the Constitution which laid down no time limit in consideration of the Bill he argued that he was examining it, he neither assented nor returned the Bill and he sat on it till the term of the House of the People was over. It was dissolved and the Bill lapsed.

Governors have also played the same game, for example, in Gujarat to frustrate a BJP led government and in the case of Madhya Pradesh to frustrate first a Congress led government and a then BJP led government. The scheme of the Constitution is that the Legislature has competence to legislate. If a piece of legislation is unconstitutional, then the High Court or the Supreme Court has the power to strike it down. The President or the Governor may, in his or her wisdom, delay a Bill by sending it back to the Legislature but neither functionary can abort a Bill through delaying tactics. That flies in the face of the mandate given to the Legislature by the people to legislate on their behalf. I would most respectfully submit to the Hon’ble Supreme Court that at some stage it will have to define the words “as soon as possible after presentation to him of a Bill for assent” given in Articles 111 and 200. Even though the Constitution does not provide for a time limit should not the Supreme Court, in exercise of its powers under Article 141, define what “as soon as possible” means? The President or the Governor who sits unduly on a Bill is acting in violation of his oath to protect the Constitution and, therefore, either by a suitable amendment of the Constitution or an interpretation by the Constitutional Bench of the Supreme Court a time limit must be prescribed for giving of assent or denial of assent and return of the Bill to the Legislature for reconsideration.

Constitutionalism Versus Adventurism

Dr M N Buch 

(Visiting Fellow, VIF)

The Constitution of India, despite the amendments which have been introduced from time to time, has a high degree of immutability, partly because its basic structure is sound, partly because it establishes a balance between public good and the constituent organs of the State, the Executive, the Legislature and the Judiciary, partly because amendment of the Constitution cannot be done whimsically because both Houses of Parliament have a role to play and this provides a check against arbitrariness and partly because there are certain inbuilt constitutional structures and organisations which in a way stand outside the normal executive, legislative or judicial structures, but which nevertheless give an independent voice and opinion to issues of national importance concerning governance. The immutability of the Constitution also rests on the Preamble which has been amended only once on 3.1.1977 and that, too, for the better. The immutability of the Constitution is further strengthened by Part III which contains the Fundamental Rights and, according to me, equally importantly through Part IV which contains the Directive Principles of State Policy, which has increasingly been used by the Supreme Court to remind the State from time to time of its basic duties towards the citizens.

An immutable constitution is not a static constitution and this has been reinforced by some fairly sensible amendments which pushed the frontiers of fundamental rights, fine-tuned and enhanced the meaning of words such as justice and equality by conferring on the underprivileged and the voiceless a whole set of rights and by the proactive role of the Supreme Court, the Comptroller and Auditor General and the Election Commission. In many ways these institutions, through interpretation, pronouncement, by public reporting have furthered the cause of constitutionalism beyond the mere letter of the law and have reinforced and strengthened the basic structure of the Constitution. I do not comment at length in this paper on the Supreme Court and High Courts which are part of the judicial components of the Indian State, except to state that through its pronouncements the Supreme Court has given a new meaning to Article 141 which says that a law declared by the Supreme Court is binding. Article 141 does not confer the power to legislate on the Supreme Court, but by interpretation of law the Supreme Court has given a whole series of judgments which to an extent do create a new legal environment, if not a new enactment. Instead, I would like to comment on four different constitutional authorities which are creatures of the Constitution and have a vital role to play in constitutionalism.

In this context the word ‘constitution’ is narrowly constructed by me as per one of the definitions given in the Twenty-first Century Chambers Dictionary, which reads, “Constitution:- the supreme laws and rights upon which the country or state is founded, especially when it is seen as embodying the rights of its people”. The four authorities to whom I refer are the Attorney General of India appointed under Article 76, together with the Advocate General of each State appointed under Article 165, the Comptroller and Auditor General of India as appointed under Article 148, the Union Public Service Commission and the State Public Service Commission appointed under Article 315 and the Election Commission of India appointed under 324 of the Constitution. Whereas there are a number of commissions, such as the National Human Rights Commission and tribunals such as the Central Administrative Tribunal, which are created under the relevant provisions of the Constitution, they are not an integral part of the Constitution and are, therefore, the creatures of law. In a way they come one step below the organs of the State which are an integral part of the Constitution itself.

Let us begin with the Attorney General of India and in this I shall include, mutatis mutandis, the Advocate General of each State, both officers being responsible for giving advice on legal matters to the Government of India and the Government of a State as the case may be. Though the Attorney General holds office during the pleasure of the President and is appointed by the President on the advice of his Council of Ministers, he is expected to be nonpartisan in the rendering of legal advice and performing the legal duties assigned to him. It is for this reason that the Attorney General has the right of audience in all courts in India and, under Article 88, has the right to speak or otherwise participate in the proceedings of either House of Parliament or any committee of Parliament. The legal advice given by the Attorney General and the Advocate Generals has to be based directly on law and the constitutional implications of the issue on which advice is required to be rendered and, therefore, such advice has to transcend the narrow confines of politics. We have had great Attorney Generals in the past who have fulfilled this role admirably and we have had a few whose conduct has been suspicious and whose advice has been tainted by politics. Constitutionalism requires the Attorney General and the Advocate General to be completely free of such bias and to the extent that he performs his duties according to the Constitution, the Attorney General, standing outside the three organs of the State, still performs the vital function of protecting the interests of the people of India by advising the State to act according to the Constitution.

In a parliamentary democracy or, for that matter, in the American pattern of democracy, one of the functions of the Legislature which cannot be tampered with by any one is its control over public funds. Britain was pushed towards a constitutional monarchy by the fact that the purse strings are controlled by Parliament and without parliamentary sanction the Crown cannot spend even a penny from the exchequer. This role of Parliament and of the State Legislature is enshrined in the Constitution in Articles 112, 113, 114,115 and 116 in the case of the Union and Article 202, 203,204,205 and 206 in the case of the States. It is Parliament and the State Legislature which alone can permit withdrawal of funds from the Consolidated Fund of India and that of the State concerned, which means that without the approval of the annual financial statement of receipts and expenditure, the assent of the Legislature to a demand for grants, enactment of the Appropriation Bill, sanction of supplementary, additional or excess grants or a vote of account on exceptional grants, government may not spend anything from the Consolidated Fund. In order to ensure that government is functioning strictly in accordance with what has been sanctioned for it by the Legislatures. Parliament and the State Legislatures through discussions, deliberations of committees such as the Public Accounts Committee and the Estimates Committee and other procedures which have been adopted from time to time, call government to account, which acts as a very healthy check on the executive. It is to help Parliament and State Legislatures to fulfill this role that the Constitution provides for the Comptroller and Auditor General with wide ranging authority. The CAG, constitutionally, determines the manner and form in which the accounts of the Union and of the States will be maintained, he has overriding powers to audit all expenditure directly from the Consolidated Fund or indirectly on the basis of grants, etc., and he has the constitutional authority under Article 151 to present his audit report to the President or the Governor as the case may be, who will then cause such report to be laid before Parliament or the State Legislature. In a way the CAG is the chief police authority and investigating agency in all matters relating to public revenues and expenditure and to that extent, whilst standing outside the Legislature, he still is the public instrument to help the Legislature in determining whether government has acted strictly according to the approved budget. By doing his duty CAG adds to constitutionality because he forces the Executive to render accounts and to face the consequences for wrongdoing. Public funds are involved in all state expenditure and this constitutional authority helps to ensure that the funds are spent wisely.

Articles 53 and 154 vest the Executive power of the Union and the States in the President and the Governors respectively and such powers are to be exercised by officers subordinate to the President or the Governor. Because the Preamble mandates justice and equality and Article 14 further mandates equality before law, the officers who help the President or Governor in exercising his powers have to ensure that whereas the aid and advice given to the President or Governor by the Council of Ministers may be and will be based on the political agenda of the party in power, the decisions taken thereon will be implemented totally impartially and without any form of political bias. For this we need independent Civil Services and, therefore, we have Chapter 1 of Part XIV of the Constitution. That recruitment to the Services should also be impartial and based on merit, under Chapter 2 of Part XIV there is a constitutional provision for setting up Public Service Commissions for the Union and the States. Whereas UPSC members are appointed by the President and State PSC members by the Governor under Article 316, in the matter of removal of the Chairman or a member of any Public Service Commission, Union or State, this can only be done by an order of the President and that, too, after an enquiry by the Supreme Court conducted as per provisions of Article 145 of the Constitution. Further, to ensure that members of Public Service Commissions remain independent and are not amenable to government pressure, under Article 319 a member of a Public Service Commission who ceases to hold office is not eligible for any further employment under the Government of India or of a State. The idea is to immunise the Services from undue blandishment right from the time of recruitment up to the time of retirement by giving independent Public Service Commissions the key role in this behalf. This is another example of constitutionalism in India.

In a democracy it is through elections that one constitutes the Legislature which, in turn, causes the government to be formed. In this behalf we have Part XV of the Constitution which governs elections and provides for an Election Commission which has superintendence, direction and control over elections to Parliament and State Legislatures. The Commission enjoys sweeping powers in this behalf, partly under the Constitution, partly under the Representation Of the People Act, but very largely through the manner in which successive Chief Election Commissioners have enhanced their own role in conducting free and fair elections and bring the entire machinery of the State under the control of the Commission for the duration of the election process. Whatever else works in India or not, certainly the Election Commission of India has won universal recognition and admiration for the manner in which democratic elections are conducted in this country. The apex of constitutionalism, therefore, can rightly be considered to lie in the Election Commission.

This paper is not only on constitutionalism but it is also on political adventurism. In this behalf, unfortunately, the Congress Party has played a most unwanted role in that whenever any of the constitutional authorities have been inconvenient to it the party has tried to bring about constitutional amendment which could curb constitutionalism. Of this the Forty-Second Amendment of the Constitution was the most notorious because through it Parliament tried to give a special status to the Prime Minister in matters of election, it tried to reduce the role of the Supreme Court, it tried to restrict the powers of superintendence of the High Courts under Article 227, it tried to constitute tribunals under Part XIV –A which would not be under the High Courts and it used Emergency provisions under Part XVIII in a manner redolent of wanting to impose authoritarianism on India. Fortunately the Forty-Second Amendment was negated by the Forty-Fourth Amendment of the Constitution, but on the horizon could be seen the danger of political adventurism. It is here that the Supreme Court, in the Keshwanand Bharti case, defining what constitutes the basic features of the Constitution, ruled what lay outside the purview of Parliament in the matter of amendment of the Constitution and laid down the vital legal principle that the amending powers of Parliament did have limitations and Parliament could not, therefore, negate what was provided by the Constitution as a part of its basic structure. The present Comptroller and Auditor General, by his own interpretation of his role, has also enhanced constitutionalism, though there is a political move to reduce the role of CAG, first by trying to set up a multi-member audit organisation and then by trying to see how legally CAG’s independence can be curbed. One sincerely hopes that these efforts come to naught because in the present state of political flux India needs constitutional activism of its constitutional authorities. In particular, Parliament must also realise that in India it is the people, collectively, as represented by constitutional authorities and institutions, who are sovereign and that the organs of the State are restricted to the role assigned to them the people. This would be the most effective curb on political adventurism of the 1975 mould, as now articulated by a junior minister in the Prime Minister’s Office.

Gilani’s Conviction: A Soft Constitutional Coup and The Crisis of State

Sushant Sareen

Even before the Supreme Court of Pakistan had pronounced the verdict against Prime Minister Yusuf Raza Gilani, the writing on the wall was very clear: the so-called ‘independent’ judiciary was hell bent on gaining the dubious distinction of breaking new constitutional ground by convicting a sitting Prime Minister on the charge of contempt of court, which is really short-hand for a soft constitutional coup. Anyone who has followed the proceedings in the said case knew that the judges had decided to convict Prime Minister Gilani even before the case started.

Only, they had to go through the motions – lawyers call it due process – to keep up the charade of being even-handed so that the charge of one-sided justice and witch-hunt against the Pakistan People’s Party (PPP) could be watered down.

On the face of it, sentencing of the Prime Minister till ‘the rising of the court’ i.e. about 30 seconds, appeared to be a bit of an anti-climax because it belied expectations of a spectacle – the PM being taken to jail and/or the court disqualifying him as a Member of Parliament. But even this half-a-minute sentence was enough to do the damage and create an unprecedented constitutional and political crisis which the country can ill-afford at this juncture. With the conviction of a sitting Prime Minister, Pakistan has entered uncharted constitutional waters that hold the potential of sinking the ship of state. As things stand, the Pakistani judiciary has breached the limitations implicit in the constitution – the most appropriate term is the Hindi word ‘maryada’ – and created a situation which the framers of the constitution would have neither imagined, nor catered for.

If the reactions to the conviction are anything to go by, the portents are not good. The ruling PPP and at least some of its allies are gearing up for a bruising legal and political battle aimed at not only protecting the PM but also making hell of a noise to undermine the judges and their judgments. Prime Minister Gilani has already called the ruling ‘not appropriate’ and is showing no signs of putting in his papers. The leader of the main opposition party, Nawaz Sharif, has sounded the bugle by declaring that he and his party no longer acknowledge Gilani as the Prime Minister and has demanded his resignation and early general elections. The right-wing religious parties like Jamaat Islami and neo-Jamaat/Talibanesque parties like Imran Khan’s Tehrik-e-Insaaf have cast their lot with the judiciary and are going hammer and tongs at the Zardari-Gilani combine. In short, the stage is all set for political pandemonium, in the corridors of power, chambers of courts, the streets of the country, and of course, the ubiquitous TV studios. The powerful military establishment is meanwhile watching everything from the sidelines, biding its time but also calculating whether or not it will be required to step into the political slugfest.

The judgment against Gilani has not only sharpened the political polarization in the country but has also politicised the judicial processes. Sample this: on the eve of the judgment those supporting Gilani made it clear that the ruling would decide whether justice would be done (i.e. Gilani would be acquitted) or the PPP would once again be victimised; those baying for Gilani’s blood (actually, the real target is Asif Zardari) were waiting to see if rule of law would be upheld (i.e. Gilani would be sentenced) or if the judges would once again buckle under pressure! In such a deeply polarized environment, it is impossible to expect that judicial verdicts will be accepted ungrudgingly by either side.

In other words, every judicial decision in Pakistan today is something of a political minefield. To a great extent, it is the judges themselves who are responsible for the situation coming to such a pass. Right from the time this government took office in March 2008, the judiciary has been a mill-stone around its neck. The reluctance of Asif Zardari to restore the chief justice was only partly the result of his own personal grudge against Justice Iftikhar Chaudhry – he had humiliated Zardari and consistently denied him any relief during the Musharraf years. Partly, Zardari resisted the restoration because the suspended chief justice spooked the army which leaned on the PPP government to avoid restoring him. But after having been forced to restore the Chief Justice, it would have been ideal if all sides had decided to let bygones be bygones and started with a clean slate. After all, there was no one in Pakistan – not the judges, not the politicians, not the faujis, not the media mujahids and jihadis, no one really – who was not sullied.

While the sins of all others seemed to have been wiped clean, Asif Zardari remained a pet object of hate for the right-wing, Punjabi mafia that runs Pakistan which wanted to punish him for all his sins (more of commission than of omission) despite the fact that he had been jailed for over 11 years without having ever been convicted. Despite Zardari having become President and enjoying complete immunity under the constitution against any prosecution, the judges did not relent in trying to fix him. If only the judges, most of them with an Islamist proclivity – a favourite judge of the chief justice is now the chief legal counsel of the assassin on the former Punjab governor and the chief justice himself has made observations against secularism – had shown the same dogged determination against terrorists like Hafiz Saeed and others of his ilk as they have shown against Asif Zardari and Yusuf Raza Gilani, Pakistan might well have been a happier place.

Forget about Islamist terrorists, these very same judges are very careful when it comes to throwing the book either at the generals or even their favoured politicians like Nawaz Sharif. The zealousness with which Gilani has been convicted is somehow completely absent when it comes to convicting top army generals and ISI officials for flouting court orders (for instance in the missing persons case). Gilani’s supporters also point out how the Supreme Court judges have acted against fellow judges for ignoring an order declaring the emergency imposed by Gen Pervez Musharraf in November 2007 but have refused to act against the officials (including the current army chief) who had also ignored the very same order. Even in the cases involving politicians of a certain persuasion, the judges seem to be very guarded in their approach. For instance, while the chief justice showed remarkable alacrity in taking suo moto notice against an actress who was caught with two bottles of liquor, the somnolence of the judiciary knows no bounds when it comes to a murder case against the former chief minister of Punjab, Dost Khosa, who was a stand-in for Shahbaz Sharif for a few months and is the son of a close associate of the Sharifs and who is believed to have killed his wife.

It is against such a backdrop that the judiciary is being judged by supporters of the PPP who also question the constitutionality of the judgment not just because the constitution provides immunity to the Prime Minister under article 248(1) for any action he takes (or as in this case, doesn’t take) in the discharge of his responsibilities but also because according to the Attorney General of Pakistan there is currently no law on contempt of court and the ordinance under which that the Supreme Court is prosecuting the Prime Minister had lapsed as a result of the judgment of this very Court. The game-plan of the PPP is going to be two-fold. At the political level, there is a slim possibility that the party decides to ask Yusuf Raza Gilani to resign and selects his replacement in the next couple of days, in which case the crisis over a convicted PM will be resolved but the issue of the controversial letter will remain open. Alternatively, and perhaps more likely is the possibility that the PPP will ask Gilani to continue in office and at the same time will use this conviction to play the victim and use the ‘political martyrdom’ card to try and cement its core support base in South Punjab and Sindh. The only problem is that given the rather poor performance of the government, it is unlikely if this ploy will find too much traction. Although the PPP might win sympathy from some quarters, whether it will also receive the votes, especially in the next general elections, cannot be said with any degree of certainty. At best what the PPP can hope for is that the political martyrdom at the hands of a vindictive judiciary might help it to reclaim lost ground after the next elections.

On the legal plane, chances are that the PPP will use every trick in the book to drag the matter and prevent the disqualification of the PM. But how long they can drag this case is again a matter of speculation: the PPP supporters believe that they can pull this thing for around four to six months and then if matters reach a head elect another PM and repeat the whole drama all over again; the PPP detractors are of the view that at best the ruling party can drag this for a two to three months after which it will have to choose another PM. As the latter see it, the appeal against the conviction could be set aside in a matter of weeks after which the disqualification reference will be moved before the Speaker who has to decide on the matter within 30 days. After this period, the case will automatically go before the Election Commission which is currently headed by a serving Supreme Court judge in a temporary capacity. He is unlikely to take too much time before disqualifying Gilani. This ruling will then be challenged before the High Court and then appealed before the Supreme Court. Given the mood of the Supreme Court, the odds are that this entire process could be decided without too much delay.

While the legal processes will follow their own course, the issue of writing the controversial letter to the Swiss authorities to reopen the cases against Asif Zardari will continue to hang like a sword over the head of the government. If the government continues to defy the Supreme Court, there is a possibility that the court might ask the army to intervene. This would pretty much mean an end of the democratic order for the foreseeable future. If however the army refuses to follow the ‘illegal’ orders of the Supreme Court, then the Court will become a lame-duck. There is a possibility that the Court might not push very hard on the letter issue and wait for the next government (likely in March 2013) to write the letter against the President whose term expires in August 2013. But even before this happens, a caretaker government is likely to be in place by around November/December this year and this government could also write the controversial letter. In other words, the letter will ultimately be written and written even while Zardari is in office. Therefore, the question is what the PPP and Zardari hope to gain by holding out on the letter for another few months.

There is of course another possibility: the government might plead immunity for the president, something that the Supreme Court has already asked it to do. This is however a risky strategy because if the immunity plea is rejected then the government will have to write the letter. On the other hand, if the court accepts the immunity plea, then questions will be raised and fingers will be pointed against the judiciary for creating such a massive constitutional and political crisis for the last two and half years even though it was clearly laid down in the constitution that the President enjoyed immunity. After all, if the case against Zardari hasn’t been decided in the last 16 years, heavens would not fall if it continues to remain undecided for another year or so.

The big problem for the Pakistani state is that all this political and constitutional tumult is taking place at a time of monumental, even existential, challenges and threats. The economy is on the verge of collapse and requires some very tough decisions if it has to survive; at the strategic level, relations with the US and the West are very precariously placed and need bold decisions from the government; the situation in Afghanistan is threatening to go out of control and the Taliban, both the Afghan and Pakistani, could wreck havoc in the region; the internal security situation is abysmal with an insurgency in Balochistan and deep disaffection in Sindh (exacerbated by the alleged murder of the Sindhi nationalist leader Bashir Qureshi), rising sectarian violence and what have you. The spectre of serious instability that was already hanging over the country has only become more ominous after the Supreme Court judgment and cemented the impression of the state sliding towards failure because how can a government that is only engaged in unending fire-fighting to survive and is being constantly hauled over the coals, provide even a modicum of governance. Ultimately, in the name of rule of law the Pakistani judiciary has ensured that there is neither any law nor any rule in Pakistan.

Author is Senior Fellow at Vivekananda International Foundation