Gandhi, the former Central Information Commissioner, in his open letter mentioned how the President may use his power under Article 72 of the Constitution and indeed pardon the Bollywood actor.
In his open letter, Gandhi reminded the President how all below the age of 35 and above the age of 50 at the time of committing a crime could be pardoned automatically if the convicts are not terrorists.
Here is the open letter written by Mr Shailesh to the President:
Dear Mr President,
I understand that worthy Members of Parliament (MPs) have sent petitions to you to use your powers of pardon under Article 72 of the Constitution. This plea is also reported to have been made by the Chairman of the Press Council of India (PCI), which is a statutory authority, and Ministers. The framers of the Constitution gave the President unfettered power to pardon any convict, without any reasons. It is also true that the Constitution did not specify who could ask for pardon.
However, Shri Markandey Katju, a former judge of the Supreme Court, and chairman of PCI would not ask for pardon without any reasons. He is reported to have stated that since Mr Sanjay Dutt was not convicted under TADA, he was not a terrorist. Besides, he has stated that since the trial has taken 20 years, and Mr Dutt was less than 40 years of age at that time, he should be pardoned. To maintain consistency, he has also stated that Smt. Zaibunisa should also be pardoned since she is over 70. Though Mr Dutt has in a dignified and logical manner stated that he is not seeking pardon, this mounting cacophony from lawyers, MPs and the head of an important statutory authority may lead you to consider using your powers to pardon.
Considering the impressive voices asking you to show mercy, you may be tempted by Portia's lines:
"The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes....
It is enthroned in the hearts of kings,
It is an attribute to God himself; "
to consider being blessed by showing mercy after some months.
The constant repetition to you to show mercy and gain the attributes of God may continue for months. Since I too was a statutory authority a few months ago, I would like to add my advice to this. The fact that our Courts take decades to decide cases finally is well known. Everyone, including the Courts has convinced themselves that this can only deteriorate.
If you use the power of pardon this time, consider using it in a logical manner, which should not result in allegations of partisanship. By the logic given by Justice Katju, cases in Courts can take fifteen to twenty years, and humanitarian grounds demand that senior citizens should not be able to suffer in prison. On the other hand, people below 35 can make mistakes due to lack of maturity.
Taking this together, and to maintain consistency of action, I plead with you to consider recommending that all below the age of 35 and above the age of 50 at the time of committing a crime should be automatically pardoned under Article 72 of the Constitution, if they are not terrorists. It would look bad if you pardoned terrorists.
There are no conditions in the Constitution when the President can use this power, and I believe if you use it in the manner suggested above, it will also reduce the burden on the judicial system. You could consider this act to be in larger public interest.
The reduction of cases in the Courts, will lead to establishing the rule of law in our Nation, and Citizens will not have to complain any longer that ‘Justice delayed is Justice Denied.'
You may then find justification in using the power of pardon under Article 72 in a Historic manner.
Former Central Information Commissioner