ALL ARE EQUAL, BUT SOME ARE MORE EQUAL THAN OTHERS . The equality before law is guaranteed by Article 14 of Indian Constitution. This Article 14 is further supported by other Articles viz. Article 15, 16, 17, and 18 dealing with fundamental right of equality. The fundamental right to life and personal liberty is governed by Article 21 of Indian Constitution. This Article 21 gives an exception by clearly stating that right to life or right to personal liberty can be restricted according to procedure established by law. It means that all cannot enjoy right to life or personal liberty and the Government is entitled to make a reasonable classification between persons in the matter of such right. E.g. Criminals convicted of offence/s cannot demand equal right to life or personal liberty similar to that of other ordinary citizens. Thus, Article 14 guaranteeing right to equality and Article 21 guaranteeing right to life and personal liberty have to be read together for understanding the principle of reasonable classification hidden within Article 21 which can come in the way of right to equality as guaranteed by Article 14. These constitutional provisions have special bearing in connection with the mercy petition filed by the Chairman of Press Council of India Justice Markandey Katju before the President of India for giving relief to actor Sanjay Dutt and others sentenced in connection with 1993 Mumbai blasts case. It is pertinent to note that the appropriate government has such mercy powers under Sections 432 and 433 of the Code of Criminal Procedure, 1973, the President has such mercy power under Article 72 of Indian Constitution in connection with central law and the Governor has such mercy power under Article 161 of Indian Constitution in connection with state law. Since actor Sanjay Dutt and others are convicted under central law, the present petition seems to have been filed by Justice Katju before President under Article 72(1)(b) of Indian Constitution. As per the judgment of Hon’ble Supreme Court in Kehar Singh versus Union of India, AIR 1989 SC 653, it has been made clear that the President enjoys sole discretionary power in granting or rejecting of such mercy petitions. The Supreme Court’s power of judicial review cannot regulate President’s mercy power. The President is the Executive Head of the Union and also the Supreme Command of defense forces of the Union as per Article 53 of Indian Constitution. But as discussed hereinabove, Article 72 of Indian Constitution makes President also the Judicial Head over and above the Chief Justice of India for the said limited purpose of mercy power. The interesting part of all such mercy petitions is that they are mainly based on humanitarian ground. It is pertinent to note that no law clearly defines as to what is humanity. The discretion lies with the heads of government holding such decision making power to decide humanitarian ground on case to case basis. There are no clear cut guidelines for regulating such decision making power to decide mercy petitions on humanitarian ground. It is likely that the Superintendent of Jail may give a corrupt report about good conduct of convict and that can be highlighted as humanitarian ground for reducing punishment of such special convict. In fact, even hardened criminals are likely to misuse this facility by acting in fine manner within jail premises and showing their real face once they come out of jail under grant of mercy petition on humanitarian ground. Such misuse of such special facility by some special persons can lead to loss of faith of common man in law and justice. It will be then correct to say as George Orwell has said in his novel Animal Farm that all are equal, but some are more equal than others. This truth is said to be governed by principle of reasonable classification. But such reasonable classification is likely to have unreasonable injustice within it. The special privilege to some special persons is likely to cause special injustice to some underprivileged persons. All cannot proceed well if law contains flaw within it. The law can dictate its veto by saying “Be you ever so high, the law is above you.” But that veto will have real veto power only if law is without flaw within it. The rule of law is possible only when the law is understood and codified in true spirit of God/Nature and not in sense of selfish human convenience.
Posted on: Fri, 25 Oct 2013 02:28:08 +0000
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