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The discussion regarding Article 72 and 161 of the Constitution of India can only be summed up after going through the provisions contained therein under the aforesaid articles of the Constitution of India.
Article 72 of the Constitution of India:
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 extents;
(c) in all cases where the sentence is sentence of death;
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court-Martial.
(3) Nothing in sub-clause ( c ) of clause (1) shall affect the power to suspend, remit or commute or sentence of death exercisable by the Governor of a State under any law for the time being in force.
Article 161 of the Constitution of India:
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.
The debate relating to Article 71 and 161 of the Constitution of India is now being raised in connection with the case of film actor Sanjay Dutt whose conviction under the Arms Act has been upheld by the Supreme Court finally. A debate is ongoing about the options available to Sanjay Dutt under law. If we go by the provisions of the statutes, Sanjay Dutt has very limited options available now under these facts. The options available to him can be summarized as under:
i) Filing of a review petition before Supreme Court taking some serious errors of judgement as the grounds of review. The experience shows that such review petitions have very limited scope and it is very rare that review of the judgement is done by the courts.
ii) Filing of Curative Petition is another option which is also based on the facts and the law applicable to the case. The Curative Petition is taken up by the bench of 5 judges. In the present case the chances of getting any relief by way of the curative petition is again limited and uncertain.
iii) Filing of petition for pardon before the Governor is the last option available to Sanjay Dutt which is not a judicial process. The Governor has to act according to the rules framed and consider the entire facts of the case then issue the orders on the pardon petition. The Governor can pardon, remit, suspend or commute the sentence based on the facts.
The maxim equality before law stipulates that the similarly places convicts be treated with the same ratio hence the status of Sanjay Dutt being a celebrity does not make any difference on the petition for pardon filed by him before the Governor. Since the powers as enshrined under Article 161 of The Constitution of India are wide enough to give absolute powers to the Governor to deal with the matter at his level but the powers can not be exercised malafidely or arbitrarily. A comparison of Article 72 and 161 of the Constitution of India will show that the said provisions as contained in the Constitution of India provide the frame work for providing the relief of pardon to the convicts in suitable cases.
The debate on Article 72 and 161 of the Constitution of India will come to an end only after Sanjay Dutt takes his steps in this direction.The discussion on Article 72 and 161 of the Constitution of India raised by the media has at least attracted the attention of the people on such legal provisions.
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