Article 161 of the Constitution of India
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.
It is no news that the conviction and the sentence were pronounced by the Sessions Judge in Bangalore on a sitting Chief Minister of one of the major states of the country. The sentence was to have been pronounced by the court earlier on a day which was not followed by a public holiday, however for reasons best known to the Honourable judge the verdict was postponed to a day which was to be followed by a court holiday! This may not have been the intention of the Sessions Judge to pronounce the judgment on a day prior to a court’s CLOSED HOLIDAY , but it has so happened – the effect of which was that an appeal could not be filed before the higher court competent to grant relief to the convict.
My question is very ELEMENTARY – if the offence was committed in the state of Tamil Nadu and the prosecution of the offence was followed by the Tamil Nadu police and their prosecutors, does the GOVERNOR OF KARNATAKA have the right to exercise the powers vested in him in terms of Article 161 of the Constitution of India?
Assuming that the Governor of Karnataka were to be vested with the powers of Art.161, does the Governor of Karnataka have the power to say that the conviction and sentence on the Chief Minister of Tamil Nadu relates to “any law relating to a matter to which the executive power of the State (Karnataka) extends”? I think not. It would be the power of the Governor of Tamil Nadu who would have the power – simply because, if the Governor of Tamil Nadu did not have the power to pardon/commute the sentence of the convicts in the RAJIV GANDHI MURDER CASE, which was prosecuted by the CBI, merely because the TRIAL PROCEEDINGS were ordered to be conducted in a neighbouring state, the Karnataka state’s Governor would not be able to assume such powers which do not belong to his executive jurisdiction.
The reason for vesting with such powers was to grant the higher power of MERCY to the government over JUSTICE, as MERCY is a higher jurisdiction, as there is every possibility of miscarriage of justice, “reasons of state”, and also as a a protection against laws which are strictly imposed for legal reasons which may not be very reasonable, and may affect the very fabric of the state (cf. Nanavati’s case)! It is time we defined “reasons of state”!
I do not for a moment say that there has been a miscarriage of justice, neither am I authorized to say so, but when a person under oath of allegiance to the Constitution and the head of the Government were to be pushed to the predicament of having to face the verdict of her past action, the verdict could put THE COLLECTIVE WILL OF THE PEOPLE OF TAMIL NADU at loggerheads with THE SENTENCE of the VERDICT! Indeed in this case, the CM of Tamil Nadu has been sentenced to imprisonment for 4 years.
In the instant case, the WILL OF THE PEOPLE OF TAMIL NADU has been downgraded unceremoniously without an opportunity of exercising respite from /suspension of the sentence, by the Governor of the state, where the offences were committed. She was straight taken to the gaol! When a constitutional provision is available for such rare occurrences, is it a must that the provisions of the Criminal Procedure Code should be followed so meticulously? I think not.
The head of the Government of the state of Tamil Nadu was unfortunately tried in a state, which had some serious outstanding issues like the Cauvery Water dispute, in which the then CM of TN (OPS being the present incumbent) had taken a very strident position against the state of Karnataka. That takes one to the next question – If the trial couldn’t have been fair in TN, would the trial in KA been IMPARTIAL, especially in the light of the fact that KA is ruled by a political party which has celebrated the conviction and sentence of the CM of TN?
After all, we should all remember that a Sessions Judge is under the control of the state government in which he is employed and does not have the IMMUNITIES which are enshrined & reserved in the Constitution for the High Court and Supreme Court Justices only! If the Hon’ble Supreme Court was convinced that a FAIR TRIAL was not possible in the state of TN, based on a partisan petition filed by a rival politician, was the point as to whether the trial in KA would be IMPARTIAL, also considered? I wonder if the SC considered the point!
A democratically elected CM of a state needn’t have to be cornered on a Saturday with no option for approaching a higher judicial forum where the Justices are vested with immunities against the government of the day! Even Henry VIII, whose major profession was to accuse his queens of treachery, treason and infidelity and have them executed, sent for the Hangman from Calais, who was known to MERCIFULLY use a fine sword instead of an axe, when Anne Boleyn’s time came for her neck to be laid on the block!
I would like to narrate an episode from the Bible to illustrate my point: the first king of Israel, SAUL was defeated by the Philistines and to circumvent the ignominy of being dragged in the mud and then being killed painfully and ignominiously, Saul planted a spear and leaned on it and he is supposed to have died (I Samuel Ch. 31) but from the account narrated by an Amalekite to David (who became the Second king of Israel), Saul was still alive and that the Amalekite was requested by the moribund Saul, to kill him and the Amalekite claimed to David that he indeed killed Saul and had brought Saul’s Crown and Saul’s bracelet for David. David asks him one withering question at 2 Samuel Ch.1 v. 14 : HOW WAST THOU NOT AFRAID TO STRETCH FORTH THINE HAND TO DESTROY THE LORD’S ANOINTED?
I don’t for a minute say that a Chief Minister of a State is an “anointed” person, much less when NO POLITICAL CHIEF, (which means the prime minister or any of the Chief Ministers) has been included in Article 361 of the Constitution of India, which expressly provides immunity to the President of India and all Governors of the states against institution or continuation of criminal proceedings during the term of their office! Yet the Chief Minister who had won an election in her own name and might and had very recently mopped up 37 Members of Parliament seat out of the total 39 of the state of Tamil Nadu deserved at least a bleak chance at the judicial and executive remedies available in the Constitution of India!
Therefore, our judicial system should not be following AMBUSH JUSTICE of first instance, where all options for judicial remedy and executive remedy are foreclosed and the convicted CHIEF MINISTER is forced to languish and labour under the verdict of a court of first instance, located in a HOSTILE CONTIGUOUS state.
MERCY is above JUSTICE and let us make NO mistake of it.
Movid's Weblog 