10-12-2006, 07:12 AM
<!--emo&:argue--><img src='style_emoticons/<#EMO_DIR#>/argue.gif' border='0' style='vertical-align:middle' alt='argue.gif' /><!--endemo--> Ex-CJIs differ on application of yardstick
R VENKATARAMANPosted online: Thursday, October 12, 2006 at 0000 hrs Print Email
NEW DELHI, OCTOBER 11: Todayâs Supreme Court ruling which underlines that the pardon power of a Governor and the President are subject to âjudicial reviewâ finds agreement amongst several former Chief Justices of India (CJIs) but they differ on the application of the âjudicial review yardstickâ.
Reacting to the ruling, former CJI J S Verma said that âevery action of the executive is subject to judicial review but such review should be exercised with great circumspectionâ.
Justice Verma cited his own judgment in the S R Bommai case in which he had held that âeven if there is an element of subjectivity (in an executive decision and action), judicial hands should be offâ.
He said the judgment, quashing the pardon granted to a convicted Congressman in Andhra Pradesh on the ground that it was subject to âjudicial reviewâ, was not new. âIn the Indira Gandhi assassination case, this point was debated and it was settled that the pardon power of a Governor or that of the President is justiciableâ.
The Supreme Court ruling comes at a time when Mohammad Afzal, whose hanging has been ordered in the Parliament attack case, awaits Presidential pardon. âIt is the rarest of rare cases,â says former CJI K N Singh, because âan attack on Parliament is an attack on the countryâs sovereigntyâ and could not be pardoned.
On judicial review, Justice Singh is in agreement with other former CJIs as âan action of the executive is subject to itâ but âthere has to be some requisite material to grant pardonâ.
Justice A M Ahmadi, another former CJI, pointed out that the position of law is âwell settled in earlier casesâ but âin a particular case, like for example Afzal, the circumstances should be gone into and every case has its individual merits and de-meritsâ.
Justice Singh said that âpardoning a convict after all the courts have adjudicated him to be hanged, should be on some consideration, reasonable, not whims or likes or dislikes. In general, courts do not interfere with pardoning but if it is found there was no ground at all, courts do have to interveneâ.
According to Justice Singh, even if âAfzal is granted pardon, any citizen or family members of the victims of his attack could move the Supreme Court challenging the pardon.â Justice Singh said âIf pardon is granted because the convict belongs to a particular community or he is white or black... that cannot be the considerationâ.
âPardon is a very difficult stage of exercise of powers (by the executive), very cautious tightrope walking,â he said. Justice Verma, on the other hand, said that âjudicial review is only limitedâ. Former Chief Justice of Delhi High Court, Justice Rajinder Sachar said that he was âpersonally an abolitionist (a votary of abolition of death sentences) but in the existing framework of law, Afzalâs case is one of the rarest of rare casesâ.
r.venkataraman@expressindia.com
R VENKATARAMANPosted online: Thursday, October 12, 2006 at 0000 hrs Print Email
NEW DELHI, OCTOBER 11: Todayâs Supreme Court ruling which underlines that the pardon power of a Governor and the President are subject to âjudicial reviewâ finds agreement amongst several former Chief Justices of India (CJIs) but they differ on the application of the âjudicial review yardstickâ.
Reacting to the ruling, former CJI J S Verma said that âevery action of the executive is subject to judicial review but such review should be exercised with great circumspectionâ.
Justice Verma cited his own judgment in the S R Bommai case in which he had held that âeven if there is an element of subjectivity (in an executive decision and action), judicial hands should be offâ.
He said the judgment, quashing the pardon granted to a convicted Congressman in Andhra Pradesh on the ground that it was subject to âjudicial reviewâ, was not new. âIn the Indira Gandhi assassination case, this point was debated and it was settled that the pardon power of a Governor or that of the President is justiciableâ.
The Supreme Court ruling comes at a time when Mohammad Afzal, whose hanging has been ordered in the Parliament attack case, awaits Presidential pardon. âIt is the rarest of rare cases,â says former CJI K N Singh, because âan attack on Parliament is an attack on the countryâs sovereigntyâ and could not be pardoned.
On judicial review, Justice Singh is in agreement with other former CJIs as âan action of the executive is subject to itâ but âthere has to be some requisite material to grant pardonâ.
Justice A M Ahmadi, another former CJI, pointed out that the position of law is âwell settled in earlier casesâ but âin a particular case, like for example Afzal, the circumstances should be gone into and every case has its individual merits and de-meritsâ.
Justice Singh said that âpardoning a convict after all the courts have adjudicated him to be hanged, should be on some consideration, reasonable, not whims or likes or dislikes. In general, courts do not interfere with pardoning but if it is found there was no ground at all, courts do have to interveneâ.
According to Justice Singh, even if âAfzal is granted pardon, any citizen or family members of the victims of his attack could move the Supreme Court challenging the pardon.â Justice Singh said âIf pardon is granted because the convict belongs to a particular community or he is white or black... that cannot be the considerationâ.
âPardon is a very difficult stage of exercise of powers (by the executive), very cautious tightrope walking,â he said. Justice Verma, on the other hand, said that âjudicial review is only limitedâ. Former Chief Justice of Delhi High Court, Justice Rajinder Sachar said that he was âpersonally an abolitionist (a votary of abolition of death sentences) but in the existing framework of law, Afzalâs case is one of the rarest of rare casesâ.
r.venkataraman@expressindia.com