Popular feeling in Kashmir is valid ground to grant Afzal pardon
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 Frankfurthen'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.
-(Coutesy: Hindustan Times)
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