Analysis  
A Congress Convict versus
the Indian Constitution
by V. Sundaram

'Lying has a kind of respect and reverence with it. We pay a Congress Minister the compliment of acknowledging a superiority whenever we lie to him'.  –  A Congress Commandment.

'Without carefully contrived 'Secular Lies', Congress would perish of despair and boredom' – A Congress Catechism.

Walter Scott said that an hour of crowded glory is worth an age without a name. Such a moment of crowded glory for the Supreme Court of India was achieved by two great judges Justice Arijit Pasayat and Justice S H Kapadia when they held on Wednesday that the power of pardon, clemency, reprieve or remission of sentence to a convict exercised by the President under Article 72 of the Constitution and by the Governor under Article 161 of the Constitution, is subject to judicial review.

Setting aside a decision of the former Andhra Pradesh Governor Sushil Kumar Shinde, remitting the sentence of a Congress activist Gouru Venkata Reddy who was undergoing a 10-year prison sentence in connection with the killing of two persons including a TDP activist, the SC bench of Justices S H Kapadia and Arijit Pasayat warned that the exercise of the clemency power would be tested by the court against the maintenance of Rule of Law. Fortunately for the innocent, law-abiding citizens of India, these two great Judges have overturned an order of that Sonia-servile, ever-puerile, ever-tepid and non-descript former Governor of Andhra Pradesh Shinde who allowed himself to be led by the partisan political considerations of the Chief Minister of Andhra Pradesh, Y Samuel Rajasekar Reddy.

The facts of this case read like an Agatha Christie novel. Gouru Venkata Reddy was sentenced by the Supreme Court for 10 years for his criminal murder of TDP worker Epuru Chinna Ramasubbaiah. The sons of the deceased had taken the matter to the Supreme Court alleging that a pardon was granted by Governor Shinde to Gouru Venkata Reddy purely on 'narrow party-based Congress political considerations and not on grounds of rule of law and the Constitution.' They had also alleged that the Governor had passed the order of pardon after a simple note was sent to him by the Y S Rajasekar Reddy government without even placing before the Governor the records of the case.

A Bench consisting of Justice Arijit Pasayat and Justice S H Kapadia, while taking note of the allegations in the petition made by the sons of the deceased TDP worker, had directed the State government to place the entire record on the process of granting pardon to Gouru Venkata Reddy, whose wife is a sitting Congress MLA, before the Supreme Court. The Supreme Court had also appointed former Attorney-General Soli J Sorabjee amicas curiae to assist it in the matter. The most unfortunate aspect of this case is that the Andhra Pradesh government, without any regard for legal or constitutional considerations, advised Governor Sushil Kumar Shinde to grant pardon to a criminally indicted Congressman, whose case according to them stood solidly 'fortified' only by virtue of the fact that his wife is a sitting Congress MLA.

In this planned criminal process of subversion of the Constitution, something akin to the disrobement of Draupadi in the court of the Kauravas in the Mahabharata, was enacted in Andhra Pradesh, with Governor Shinde and Chief Minister Y Samuel Rajasekar Reddy colluding together like Dushasana and Duryodana. For these two Congress Kauravas, the private interest of a secular Congress convict seemed more important than the Indian Constitution; the political welfare of the criminal Congress party more sacred than public welfare. According to this wicked duo, Gouru Venkata Reddy, the shameless Congress criminal, was only guilty of a private murder of a TDP worker Epuru Chinna Ramasubbaiah. These two disgusting and disgraceful Congress men in high authority are guilty of the unpardonable public murder of the Indian Constitution and The Rule of Law.

I would like to quote extensively from this historic and landmark judgement of the Supreme Court by Justices S H Kapadia and Arijit Pasayat:

'Rule of Law is the basis for evaluation of all decisions (by the court)... The supreme quality of the Rule of Law is fairness and legal certainty. Every prerogative has to be subject to the Rule of Law. The Rule of Law cannot be compromised on grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent.'

'The President and the Governor are the sole judges of the sufficiency of facts and of the appropriating of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution itself. The principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a Constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutations.'

'These are not acts of grace. They are part of the Constitutional scheme. When a pardon is granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgement has fixed. Granting pardon is in no sense an overturning of a conviction, but is rather an executive action that would mitigate or set aside the punishment of a crime. It eliminates the effect of conviction without addressing the defendant's guilt or innocence. The exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of official duty - the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future. It is vested in the President or the Governor, not for the benefit of the convict only but for the welfare of the people who may insist on the performance of the duty. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.'

Finally the Supreme Court has made a supreme contribution to the existing corpus of defined and substantive Constitutional Law when it has declared with courage, conviction, clarity and candor:

'It can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. Rule of law is the basis for evaluation of all decisions.'

When I see the callous political behavior of so called senior Congress men of the slavish Servants of Sonia Congress party today, I cannot help quoting the words of Walt Whitman, the great poet of American democracy, who wrote about the politicians of his time in 1880:

'The members who composed it were, seven-eighths of them, the meanest kind of bawling and blowing officeholders, office-seekers, pimps, malignants, conspirators, murderers, fancy-men, custom-house clerks, contractors, kept-editors, spaniels well-trained to carry and fetch, jobbers, infidels, disunionists, terrorists, mail-riflers, slave-catchers, pushers of slavery, creatures of the Presidents, creatures of would-be Presidents, spies, bribers, compromisers, lobbyers, sponges, ruined sports, expelled gamblers, policy-backers, monte-dealers, duelists, carriers of concealed weapons, deaf men, pimpled men, scarred inside with vile disease, gaudy outside with gold chains made from the people's money and harlots' money twisted together; crawling, serpentine men, the lousy combining's and born freedom-sellers of the earth.' – (WALT WHITMAN: Origins of Attempted Secession,1880).

Leo Tolstoy, perhaps, had mean and unscrupulous men like supine Governor Shinde, servile Chief Minister Y S Rajasekar Reddy and the Imperious Super Sonia, the de facto Prime Minister, in his view when he penned the following immortal lines in his Anna Karenina:

'Hypocrisy is anything whatever may deceive the cleverest and the most penetrating man, but the least wide-awake of children recognizes it, and is revolted by it, however ingeniously it may be disguised.'

I know that some of the top political criminals of the Congress Party would love to overturn this Supreme Court verdict by proposing an amendment to the Constitution with the willing connivance of other political parties in the UPA coalition. The bold and heroic judgement given by Justice Pasayat and Justice S H Kapadia is very reminiscent of an immortal judgement given by Lord Mansfield in England in the famous John Wilkes case in 1780:

'I wish popularity: But it is that popularity that follows, not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends, by noble means. I will not do that which conscience tells me is wrong, upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the Press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can follow.'

Two hundred years later, in a more modern context, Justice Hiller B Zobel in USA declared in a judgement:

'Elected officials may consider popular urging and sway to public opinion polls. Judges must follow their oaths and do their duty, heedless of editorials, letters, telegrams, picketers, threats, petitions, panelists and talk shows. In this country, we do not administer justice by plebiscite.'      

October 15, 2006

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