By A.G. Noorani
The Hindusthan Times, 24 Oct. 2006

"Constitutional law is not at all a science, but applied politics, using the word in its noble sense." It was in the spirit of Justice Felix Frankfurter's aphorism that, on September 8, 1974, President Gerald Ford granted pardon to his predecessor, Richard Nixon. He acted against public opinion and in the knowledge that it would cost him the election in 1976, which it did. History has, however, vindicated him.

A nation torn apart by race riots, protests on Vietnam and partisanship could ill-afford the trauma. The US's prestige in the world would have sunk low. The Special Watergate Prosecutor, Leon Jaworski, was flooded with appeals to challenge the pardon. His memoirs, The Right and the Power, record agonisingly why he refused to do so.

Never before has Kashmir witnessed such intense unanimity - from Chief Minister Ghulam Nabi Azad to the separatists - as on pardon for Mohammad Afzal. What we need to ask ourselves is why do Kashmiris react as they do? The answer we shirk is that they feel oppressed and humiliated. Afzal is no popular hero, unlike Maqbool Butt. But it is their own tragic condition they lament each time. They protest thus. We must address earnestly the roots of Kashmiri alienation, not dismiss the popular clamour as some do.

"It looks to me to be narrow and pedantic, to apply the ordinary ideas of criminal justice to this great public contest. I do not know the method of drawing up an indictment against a whole people. I cannot insult and ridicule the feelings of millions of my countrymen." What Edmund Burke said in his immortal speech in Britain's House of Commons on March 22, 1775, on conciliation with the US, is true of Kashmiris as well.

Has anyone ever heard of a death sentence on a man who was undefended at his trial? This monstrous miscarriage of justice warrants retrial. The Supreme Court has used emotional language. No PM has accused militants of "treason as it has". Medieval rulers ordered humans to "become extinct". Judges do not. It rightly calls the crime a "terrorist act" but ends up holding that it "might very well be an act of waging war". The two judges on the bench claim "to view the expression with the eyes of the people of free India" and "dissociate ourselves from the old English and Indian authorities", create new law and send a man to the gallows along with some basics of criminal jurisprudence.

Both must be saved. All constitutional tests would justify pardon on one ground alone - popular feeling in a state charged with alienation, where a peace process is underway.

BR Ambedkar told the Constituent Assembly on December 29, 1948: "The Home Minister who would be advising the Governor on a mercy petition... would be in a better position to advise the Governor having regard to his intimate knowledge of the circumstances of the case and the situation prevailing in that area." There, then, are relevant factors. They are all the more true of the Union Home Minister when advising the President apropos Kashmir. It is germane to the power of pardon.

Clamour for Afzal's scalp comes ill from men who have, like accused persons of the lesser breed, avoided trial for over a decade in the Babri masjid demolition case. The chief among them, LK Advani, shamelessly said that it was "a political case" and did not involve "moral turpitude" (December 20, 1999). What a message by the then Union Home Minister to militants all over the country.

Commenting on judicial independence, De Smith, an eminent authority on constitutional law, asked whether this implied "that judges should be entirely aloof from public sentiment and always disregard the strength of local feeling on an issue before them? If not, to what extent should judges take into account consideration of public policy, and how far can the government or its unruly supporters or opponents be permitted to determine what is the public interest? Judges not infrequently have to determine what is in the public interest, or whether a transaction is contrary to public policy, or whether it is necessary to impose a deterrent sentence because of the prevalence of a social evil; and in coming to such decisions, they are expected to have some regard to the general sense of the community and not to rely merely on idiosyncratic opinions. Moreover, in some political contexts, the courts allow the executive or the House of Commons the first and last word".

It is preposterous to cry "violation of the rule of law". The power of pardon is an integral part of the legal process that begins with arrest and investigation and proceeds to trial and sentence. Public policy is as valid a consideration in the grant of pardon as it is in the decision to launch or withdraw a prosecution.

English texts speak of 'political' in two different senses: 'a party political', which is motivated by expediency or party loyalty. The Supreme Court rightly struck down pardon in a case of this kind on October 11, 2006. But 'political' is used in another sense also, which is synonymous with considerations of the State or the public interest.

In Britain, the Attorney General (AG) exercised for long the power to launch prosecutions for certain offences and to withdraw all prosecutions in his sole discretion. He consults ministers, if at all, if he so wishes. The Franks Committee on the Official Secrets Act, 1911, noted that he "may consult ministerial colleagues before taking his decision to prosecute. He will do this in cases where he thinks there may be important considerations of public policy or of a political or international character to be taken into account". Thus, even if there is a clear offence of breach of official secrecy, the AG will not bring a case if these considerations apply.

Two distinguished AGs have expounded the law in terms which bear directly on Afzal's case. Delivering the Sir George Bean Memorial Lecture in Manchester on October 29, 1978, Samuel Silkin said that the need to enforce the law should sometimes be balanced by political considerations. "What if their enforcement will lead inevitably to law-breaking on a scale out of all proportion to that which is penalised or to consequences so unfair or so harmful as heavily to outweigh the harm done by the breach itself?

One consideration that had to be borne in mind, Silkin said, was the fear that minority groups, believing themselves to be unprotected and under attack, might react. "If I make my decision on a party political basis, I deserve all the criticism which I am likely to receive. But if I ignore political considerations in the widest sense of that term, then I am failing in my responsibilities and courting disaster."

Lord Shawcross' letter to The Times (London) of July 29, 1989, is a locus classicus on the subject. It concerned the proposal to prosecute Nazi war criminals. The AG's discretion was "not to be settled by Parliament". He repeated Lord Simon's dictum that "there is no greater nonsense talked about the AG's duties in this context than the suggestion that he should prosecute because there is what the lawyers call 'a case'". He should consider "all the relevant facts". That would include "public morale and order" and "public policy and interest in the widest sense".

If Advani's officials had succeeded in the parleys with the Hizbul Mujahideen in 2000, is there the slightest doubt that its chief, Syed Salahuddin, and his men would have received pardon? So, undoubtedly, would the Naga militants if the talks with them succeeded. Conditions for pardon are common in peace accords. In the Federalist Papers, Hamilton supported giving this power to the executive, rather than the legislature, so that "in seasons of insurrection or rebellion" an offer of pardon is made in time instead of "letting slip the golden opportunity" for peace. That is certain to happen in Kashmir if Afzal is executed.

(Courtesy: Hindustan Times)

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