Granting Of Pardon To Sanjay Dutt And The List Of People Pardoned Or Granted Clemency By The President Of The United States

 ~~Suman Mukhopadhyay

Let me begin with this line, "Insanity has become "Pandemic" in India.........though the media is trying hard to turn it into an Epidemic".... 

There has been a lot of debate regarding whether the noted Film Star, Mr.Sanjay Dutt can be pardoned or not. Many such as former judge of Supreme Court, Mr.M Katju, Film Producer, Mr.Mukhesh Bhatt, important political figures like Ms.Jaya Bhadhuri Bachchan, Mr.Amar Singh, Mr.Shatrughan Sinha, etc has spoken for pardoning this talented film star and so of Late Sunil Dutt and Nargis Dutt. Going against the tide, is not an easy job, and one cannot but thanks those who have come to the rescue of this actor, who got trapped due to some blunders committed 20 years back.

However, there are some who have taken simple and straight jacket route, espousing, the hackneyed phrase, "The Law  Of The Land Should Take Its Own Course", as if pardoning someone is alien to our constitution!! They have hurled such abusive words like "Criminal" against for some crimes, which when looked from a distance, does not look too series. The honourbale Supreme Court also, gave a lighter punishment to this actor. However, it is a matter of brainstorming, as to whether sending him 2nd time to the Jail will do any good to the society.

But then what surprised me, is the kind of lateral thinking coming from so called "Maverick" Gentlemen like Dr.Subramanium Swamy and Dr.Meghnad Desai, who preferred Mr.Dutt to be in Jail rather than doing films.  If this is the condition of our talent pool then whom  we common Indians take suggestions from, remains the question. This shows that even though a person, may have occupied a high chair, but he/she lacks some basic qualities or traits or does not have the ability to judge which arrow to use when. We have seen in the Epic (Hinduism)  Ramayana, how one wrong arrow of the King Dashrath, while hunting for deer, provided the fodder for the whole story. In the same way, if our constitutional provision or arrows are not used properly, there could such series of Ramayanas. Most of the Indians same herd mentality and are of bankrupt of ideas or free thinking--or they cannot think beyond a point. That is why there is a mad cry  to "Hang Everyone".  In any country, the prime duty for any jurisprudence, should be to reduce crime, with minimum application of force---this makes the democracy vibrant. We all commit mistakes in our life and then repent--it because Human beings are at times emotional and irrational, in their behaviour. This brings lot of trouble for them......we need to find ways to address the causes of crimes rather only thinking of brutalizing our societies. Too much use of rods, might spoil the child too---we need to take this factor into consideration.

Anyway, let me speak of my points here and explore why it is easier to pardon Sanjay Dutt rather than ask him to rot in the Jail. 

1. Sanjay Dutt is a VIP and is no ordinary citizen. He is a talented artist and is known to be a law abiding citizen, except that blunder which he committed, almost 20 years back. Before writing more on the topic let us see what Dr.Meghnad Desai has written today in The Indian Express: "In Mumbai there was a pogrom against Muslims carried out by the Shiv Sena, BJP and Congress. (I was in Mumbai during early January 1993 to give a lecture. I had to be given a police escort from the Taj to the airport through burning streets.) It is all recorded in the Srikrishna report. No one has been punished for the crimes named in that report".
"Sanjay Dutt is in his family history a paradigm of Indian secularism. His maternal great grandmother was a Brahmin child widow who ran away to become a Muslim and joined the singing profession in Allahabad. Jaddan Bai married a Hindu who also converted and their daughter was the famous Nargis, who had twin names as Fatima and Tejeshwari. She met and married Balraj (Sunil) Dutt, who came from the Mohyal Brahmin community which had fought at Karbala way back in the days of the Great Schism in Islam! At her marriage conducted with Arya Samaj rituals, Nargis declared her name as Tejeshwari. When she died at 50, Hindu and Muslim priests debated as to how the body should be treated. It had eventually an ecumenical treatment".
"So Sanjay Dutt can be pardoned for not knowing whether he is a Hindu or a Muslim. But in January 1993, Mumbai was deeply divided. Sunil Dutt had harnessed his family to help Muslim families made homeless and needing help. This made the rioters angrier. Sanjay and his sisters were denounced as Muslims and as such suitable candidates for the ongoing pogrom. They received threats. So he decided to take precautionary measures and gathered guns. There is no doubt that he did violate the law about possession of arms, though he was acquitted of any offence under TADA".
You have read what Lord Desai has said, though at the end he followed the same sardonic line. Now let me point out here that, since, he is close to two political outfits, the Samajbadi Pary (SP) and the Congress, naturally, the BJP and some of its allies, have voiced their opposition to any sort of pardon, fully knowing about the constitutional provisions in special cases. It would be really foolish and stupid if anyone thinks that it is not a special case or the case does not deserve special attention. Hence, we can conclude that the opposition towards Sanjay Dutt, by certain sections has more to do with political compulsions rather the real issue. Or it has more to do with political rivalry of sorts rather, than other factors. His offense everyone knows is minimum as compared to the ferocity of the Bombay blast, but a large section of the Indian media has made his crime look so mammoth, for the hope of generating more more TRPs.

2. Sanjay Dutt through his movies, can bring foreign exchange, which is so necessary when India is running a high current account deficits and when the hot FII money is moving Indian markets like a Casino. Moreover, he is a star and carries considerable clout in Bollywood. This might influence some of foreign producers to think of providing more and more funding to the Indian Film Industry, helping it grow. 

Any FDI is a welcome move for India and when cost of film production goes into billion of Rupees these days, it would definitely help in cutting down the high fiscal deficits too, since, the government would generate entertainment tax from the films and television serial produced. Moreover, mega--brand artists like Sanjay Dutt, provides lot of employment through his films, since a good number of producers, directors, music directors, cameramen, art directors, choreographers, co-artists, make--up artists, clapper boys, etc, are associated with him. If his film releases are delayed, not only the producer stands to lose a part of their investments but also payments of other entities involved in the exercise, would also be affected. So, sending him to jail again would be affecting the livelihood of so many people, associated with him. If he was an ordinary citizen or a top class criminal then the things would have been different. Sanjay Dutt, a Mohyal Brahmin, married a Muslim but still has maintained his Hindu identity like his father, which is generally rare in Hindu--Muslim marriages. He and his wife even worked for the mentally challenged persons.Therefore, I feel it would be criminal, to stop him from doing films suddenly and ask him to complete his remaining Jail terms, following the Judiciary, only. On the other hand it would be more prudent to give him clemency, so that, he can set an example as to how a person can reform himself and work for the upliftment of the poor and downtrodden in the society. He is not a terrorist and always said, "I love my country and its people". Also, as mentioned by me, in umpteen number of forums that he bought those weapons as he and his sister were facing threats from certain quarters, following the Bombay riots. He might have thought that since, the state was unable to protect the life and limbs of a community, his family might also, fall under their sword. This is a natural question which could haunt anyone, disturbed with life threatening threats from certain quarters.

3. Here, I would like to take the opportunity to point out to those who have been clamoring for his blood, think that none can be Pardoned, then, why do they not ask the ministers or MP to bring in a legislation and abolish the "POWERS OF PARDON" of both the President of India and Governor of respective states, as is mentioned in the article, 72 and 161 of the Indian Constitution? The point is that India Democracy is not only about Judiciary, it is also about legislature and executives too. The Indian democracy would be a lame--duck, if we blindly follow only one appendage and forget the others.  Before, I write further let us first understand the concept of Pardon or Forgiveness: 

 (i)  Absolute: Absolute pardon may blot out the guilt itself. It does not amount to an acquittal unless the Court otherwise directs. The accused is released permanently without requiring any condition to be fulfilled.
 (ii) Conditional: Under this pardon, the offender is let off subject to certain conditions. The breach of these conditions will lead to revival of his sentence and he shall be subjected to the exhausted portion of his punishment.
(iii) Jurisprudence of Granting pardon: The philosophy underlying the pardon power is that that “every civilized country recognizes and has, therefore provided for the pardoning power to be exercised as an act of grace and humanity in proper cases, without such a power of clemency to be exercised by some department or functionary of government, a country would be most imperfect and deficient in its political morality and in that attribute of deity whose judgments are always tampered with mercy.” The pardoning power is founded on consideration of public good and is to be exercised on the ground of public welfare, which is the legitimate object of all punishments, will be as well promoted by a suspension as by an execution of the sentences.
Pardon may substantially help in saving an innocent person from being punished due to miscarriage of justice or in cases of doubtful conviction. The hope of being pardoned itself serves as an incentive for the convict to behave himself in the prison institution and thus, helps considerably in solving the issue of prison discipline.
It is always preferable to grant liberty to a guilty offender rather than sentencing an innocent person.
The object of pardoning power is to correct possible judicial errors, for no human system of judicial administration can be free from imperfections. 

Pardon as a mode of mitigating the sentence of the accused has always been a controversial issue for a long time. Those who reject pardon as an effective measure of mitigating circumstances argue that the power to pardon is often misused by the executive. There is a possibility that the convict may procure his release from prison by exerting undue influence on the executive authority. To avoid these flaws, in most of the countries, there is a provision for judicial review of the pardon granted in the event of grounds for pardon being found unsatisfactory.
Now, it is a well settled principle that power under Articles 72 and 161 is subject to judicial review.

Article 161 in The Constitution Of India 1949:
161. Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases 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.

Article 72 in The Constitution Of India 1949:

72. Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases

(1) The President 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

(a) in all cases where the punishment or sentence is by a court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death

(2) Noting in sub clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force

Now let us take the case below  and observe  it keenly:

Bombay High Court, Akhtar Hussain vs State Of Maharashtra And Anr. on 7 June, 1999:  Let us also, see what the Section 433 of Criminal Procedure Code says:
433. The appropriate Government may, without the consent of the person sentenced, commute-
(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person-might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.
In the case of the petitioner, the Hon'ble Supreme Court converted the sentence of three months rigorous imprisonment to one of simple imprisonment for the same period and made specific observation that this has been done in order to facilitate his moving the State Government for conversion of sentence under Section 433, Criminal Procedure Code. As under Clause (d) of Section 433 of the Criminal Procedure Code, a sentence of simple imprisonment can be commuted for fine. These observations of the Supreme Court gave a ray of hope to the petitioner to get his sentence commuted by the State Government.
There can be no doubt as to the preposition that the right to exercise the power under Section 433 of Criminal Procedure Code vests in the Government and has to be exercised by the Government in accordance with the rules and established principles State of Punjab and Haryana v. Ishwarsingh . Therefore, it is clear that the discretion vested in the appropriate Government under Section 433, Criminal Procedure Code to commute a sentence has to be exercised by the Government in accordance with the rules and established principles. The circumstances in which the State may exercise a particular power are nowhere defined under Section 433, Cr.P.C. and such exercise of powers save inferentially in the case where the power has been considered, but generally require the State.

Now, let us look at the Article 21 in The Constitution Of India 1949:

21. Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law. 

All powers provided in the Constitution belong to the people of India, and are entrusted by them to specific institutions and functionaries with the intention of working out, maintain and operating a constitutional order. There cannot be any attributes more important than the life and personal liberty of people in the civilized society. That is why, Courts have given much importance to Article 21 of the Constitution, and deprivation of personal liberty and threat of deprivation of life by the action of the State were regarded serious, and recourse is provided to the judiciary. It has also been considered that in the matter of life and personal liberty, protection should be extended by entrusting power further to some higher authorities to scrutinies the validity of the threaten denial of life or the threaten or continued denial of personal liberty. Such power determine for himself whether the case is one which deserves to grant relief falling within that power. In doing so, it cannot be understood that The President is amending, modifying or substituting the judicial record. The President of India acts under the constitutional power which is entirely different from the judicial power, and the same cannot be regarded as an extension of it. The legal effect of a pardon is wholly different from judicial super cession of the original sentence.
The Courts have held that judicial review of the order of The President of India is very restricted and within the strict limitation as defined in Maruram v. Union of India, . It is further held that Courts need not give any guidelines for regulating such exercise of power, as there is sufficient indication in the terms of Article 72 of the Constitution and in the history of the power enshrined in that provision as well as existing case laws, and it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, as the power is on the widest amplitude, and can contemplate myriad kinds and categories of cases with facts and situations varying..........
The honorable courts have observed that,  the nature of power of pardon even under Sections 306 and 307 is essentially different than the nature of such power under the Constitution of India whereby the President and/or Governor are empowered to grant pardon. Those powers are exercised after a person is found guilty. That is not so here. Under Sections 306 and 307, the pardon is tendered during the investigation, enquiry or trial, as the case may be. The object is to obtain evidence of an accomplice so as to facilitate conviction of others. Undoubtedly, such a power has to be conferred specifically. It is a substantive power. The power has to be derived from the statutory provisions. Section 306 confers the power to grant pardon in respect of serious offences.

The honourable courts further observed that, in all cases where the sentence is a sentence of death and both the President and the Governor have concurrent power in respect of suspension, remission and commutation of sentence of death and to suspend, remit or commute the sentence of any person is co-extensive with the executive power of the State. The power to grant pardon or to commute the sentence of any person  convicted of any offense which vests in the President, is not subject to any other provision of the constitution. lt is a constituent power vested in the head of state and in its terms, the power is  absolute.
It is imperative mention here that in Dhananjoy Chatterjee alias Dhana v State of West Bengal, the Supreme Court reiterated its earlier stand in Maru Ram’s case and said:
“The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the state.”

Therefore, I would humbly submit to the President of the India (in consultation with the Union Government) and /or the Governor of Maharashtra (on advice of the State Government), to pardon Mr.Sanjay Dutt, for the greater good of the society, in  accordance with the article 72 or article 161 of the Constitution of India and taking into notice the article 21 of the Indian Constitution. 
Now let us take the United States of America to see, what their Presidents did:

Jimmy Carter:Democratic President Jimmy Carter pardoned, commuted or rescinded the convictions of 566 people during his term. Among them are:

• Oscar Collazo – Attempted assassination on President Harry S. Truman; commuted to time served
• G. Gordon Liddy – Watergate figure. Convicted for 20 years, commuted after serving 4½ years for conspiracy, burglary and illegal wiretapping.
• Peter Yarrow – Singer-songwriter of Peter, Paul and Mary
• Vietnam draft dodgers – Unconditional amnesty issued in the form of a pardon
• Jefferson Davis – President of the Confederate States of America.
• Patty Hearst – Convicted of Bank Robbery; sentence commuted
• Lolita Lebrón, Rafael Cancel Miranda, Irving Flores Rodriguez – machine-gunning the U.S. House of Representatives and wounding five Congressmen in 1954; clemency

Ronald Reagan:
Republican President Ronald Reagan pardoned, commuted or rescinded the convictions of 406 people during his term. Among them are:

• W. Mark Felt and Edward S. Miller – FBI officials convicted of authorizing illegal break-ins. Mark Felt later in life admitted to being Deep Throat, the informant during the Watergate affair.
• Junior Johnson – Moonshining; pardoned
• George Steinbrenner – Was convicted of illegal Nixon campaign contributions and obstruction of justice; pardoned

George H. W. Bush:
Republican President George H. W. Bush pardoned, commuted or rescinded the convictions of 77 people during his term. Among them are:

• Lewis "Scooter" Libby – Assistant to President George W. Bush and Chief of Staff to Dick Cheney was convicted of perjury in connection with the CIA leak scandal involving members of State Department who 'outed' CIA agent Valerie Plame. Libby received commutation, not a full pardon.
• José Compeán and Ignacio Ramos – Two US Border Patrol agents who wounded drug smuggler Osvaldo Aldrete Dávila and tried to cover up the incident.Senator Dianne Feinstein asked President Bush to commute the sentences.
• Charles Winters – Posthumous pardon for smuggling three B-17 Flying Fortress heavy bombers to Israel in the late 1940s.
• Issac Robert Toussie – Convicted of making false statements to the U.S. Department of Housing and Urban Development; pardoned and the pardon revoked one day later.
• Edwin L. Cox Jr. – Convicted in 1988 for bank fraud.
• John Forté – Hip-hop singer/song writer's sentence for smuggling cocaine was commuted.

Bill Clinton:
Democratic President William J. Clinton pardoned, commuted or rescinded the convictions of 459 people during his term. Among them are:

• Roger Clinton, Jr. – brother of Bill Clinton. After serving a year in federal prison for cocaine possession.
• Almon Glenn Braswell – convicted of mail fraud and perjury; pardoned.
• Patty Hearst – Bank robbery. Prison term commuted by Jimmy Carter. She was released from prison in 1979. She was fully pardoned by Clinton in 2001.
• Marc Rich, Pincus Green – business partners; indicted by U.S. Attorney on charges of tax evasion and illegal trading with Iran. Pardoned at the request of 3 Republicans including Lewis Libby.
• Dan Rostenkowski – Democrat from Illinois. Served his entire sentence, then pardoned.
• Fife Symington III – Republican Governor of Arizona convicted of bank fraud; pardoned.
• Susan McDougal – partners with Bill Clinton and Hillary Rodham Clinton in the failed Whitewater deal. Guilty of contempt of court, she served her entire sentence and was then pardoned.
• Henry Cisneros – Clinton's Secretary of Housing and Urban Development. Pleaded guilty to a misdemeanor count for lying to the FBI, and was fined $10,000.
• Edward Downe, Jr. – wire fraud, filing false income tax returns, and securities fraud; pardoned.
• Elizam Escobar – seditious conspiracy; pardoned.
• Samuel Loring Morison – espionage and theft of government property; pardoned.
• Mel Reynolds – Democratic member of the United States House of Representatives.
• Henry O. Flipper – The first black West Point cadet was found guilty of "conduct unbecoming an officer" in 1882.
• John Deutch – Director of Central Intelligence, former Provost and University Professor, MIT.
• Rick Hendrick – NASCAR Team Owner & Champion; convicted of mail fraud; pardoned.
• FALN – commuted the sentences of 16 members of FALN, a violent Puerto Rican terrorist group that set off 120 bombs in the United States, mostly in New York City and Chicago. The 16 were convicted of conspiracy and sedition and sentenced with terms ranging from 35 to 105 years in prison.

George W. Bush:
Republican President George W. Bush pardoned, commuted or rescinded the convictions of 200 people during his term. Among them are:

• Lewis "Scooter" Libby – Assistant to President George W. Bush and Chief of Staff to Dick Cheney was convicted of perjury in connection with the CIA leak scandal involving members of State Department who 'outed' CIA agent Valerie Plame. Libby received commutation, not a full pardon.
• José Compeán and Ignacio Ramos – Two US Border Patrol agents who wounded drug smuggler Osvaldo Aldrete Dávila and tried to cover up the incident. Senator Dianne Feinstein asked President Bush to commute the sentences.
• Charles Winters – Posthumous pardon for smuggling three B-17 Flying Fortress heavy bombers to Israel in the late 1940s.
• Issac Robert Toussie – Convicted of making false statements to the U.S. Department of Housing and Urban Development; pardoned and the pardon revoked one day later.
• Edwin L. Cox Jr. – Convicted in 1988 for bank fraud.
• John Forté – Hip-hop singer/song writer's sentence for smuggling cocaine was commuted.

Barack Obama:
Democratic President Barack Obama has pardoned 16 people up to the point of March 2011 in his term of office.Among them are:

• James Bernard Banks, of Liberty, Utah, sentenced to two years of probation in 1972 for illegal possession of government property.
• Russell James Dixon, of Clayton, Ga., sentenced to two years of probation in 1960 for a liquor law violation.
• Laurens Dorsey, of Syracuse, N.Y., sentenced in 1998 to five years of probation and $71,000 in restitution for conspiracy to defraud by making false statements to the Food and Drug Administration.
• Ronald Lee Foster, of Beaver Falls, Pa., sentenced in 1963 to a year of probation and a $20 fine for mutilating coins.
• Timothy James Gallagher, of Navasota, Texas, sentenced in 1982 to three years of probation for cocaine possession and conspiracy to distribute.
• Roxane Kay Hettinger, Powder Springs, Ga., sentenced in 1986 to 30 days in jail and three years of probation for conspiracy to distribute cocaine.
•  Edgar Leopold Kranz Jr., of Minot, N.D., who received 24 months of confinement and a pay reduction for cocaine use, adultery and bouncing checks.
• Floretta Leavy, of Rockford, Ill., sentenced in 1984 to 366 days in prison and three years of parole for drug offenses.
• Scoey Lathaniel Morris, of Crosby, Texas, sentenced in 1991 to three years of probation and $1,200 restitution for counterfeiting offenses.

Sources:
(i) Wikipedia
(ii) http://indiankanoon.org
(iii) http://www.vakilno1.com
(iv) http://www.lawteacher.net, etc.