The politics of pardons

The grant of clemency to several convicted criminals in Haryana in recent times raises questions about the Om Prakash Chautala government's political motives.

T.K. RAJALAKSHMI in Rohtak and Hansi

IN July 1999, when the Indian National Lok Dal (INLD) led by Om Prakash Chautala assumed power in Haryana, it was widely believed that the new leadership was keen to improve the party's image. But a series of pardons - according to informed sources there are ten such instances - granted to convicted persons under Article 161 (power of Governor to grant pardons) of the Constitution have eroded its credibility. The INLD, a constituent of the National Democratic Alliance (NDA), which rules at the Centre, is, however, not perturbed by the criticism that its government has let partisan motives override the public interest. It formed the government with the Bharatiya Janata Party although it was clear that the latter's role was largely defined by its senior partner. Yet, in one particular case of clemency, granted to the killers of a Congress(I) councillor, the BJP seems to have played an important role too.

The exact number of instances of clemency granted since the government took over is not available officially. The motives of the government are suspect particularly in two cases in which the conviction was either handed down by a Sessions Court or was upheld by a higher court.

One of the cases related to the murder in broad daylight of Jasbir Singh, a post-graduate student of Kurukshetra University. Twelve persons were arrested and tried in the Sessions Court. They were first charged under Section 148 (rioting, armed with deadly weapon) of the Indian Penal Code (IPC). Two of them were substantively charged under Section 302 (punishment for murder) and the rest were charged under Section 302/149. One of the main accused was also charged under Section 27 of the Arms Act read with Section 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 for using a knife in the commission of the crime. All the accused pleaded not guilty and the matter went to trial. They were acquitted on August 6, 1988 by the Additional Sessions Judge.

Jasbir was the State president of the Students Federation of India (SFI) while the accused belonged to the Chatra Sabha, the student wing of the INLD. One of the accused, Himat Singh, was elected president of the university union. (Jasbir had supported the rival candidate.) The immediate cause of the hostility was the SFI's opposition to the union's budget proposals. The SFI prevented the passage of the budget by the general body. The accused, armed with hockey sticks and knives, targeted Jasbir, declaring their intention to kill him.

On August 6, at 1-30 p.m., Jasbir and his two associates were standing near the Nar Hari Hostel when Sat Parkash, Himat and some others approached him. Himat caught hold of Jasbir, while Sat Parkash and Satbir Singh stabbed him. When Sumer Singh, who was to be a prosecution witness later, intervened, he too was stabbed. Jasbir was also attacked with iron rods, hockey sticks and clubs. Sumer Singh was taken to the Post-Graduate Institute, Chandigarh. Jasbir died on the way to the hospital. At the trial stage, the Sessions Judge found Sumer Singh's evidence insufficient to establish the guilt of the accused and acquitted them.

As the accused were also charged under TADA, an appeal was filed in the Supreme Court which re-examined the evidence and the statement of a crucial witness. A Bench comprising Justices K.T. Thomas and M.K. Mukherjee set aside the order of acquittal of four of the accused - Sat Parkash, Satbir, Himat and Devinder Singh. Sat Parkash and Satbir were convicted under Section 302 read with Section 34 (acts done by several persons in furtherance of common intention) of the IPC and sentenced to life imprisonment. Devinder Singh was convicted under Section 326 (voluntarily causing grievous hurt) and sentenced to five years' rigorous imprisonment (R.I.). Himat was also sentenced to five years R.I. For the rest of the accused, the acquittal order of the Additional Sessions Judge stood undisturbed. The Judge was directed to put the convicted persons in jail. This was on July 9, 1997.

Jasbir's father Devi Ram thought that justice had at last been rendered. But on October 26, 1999, some three months after Chautala assumed office, both Satbir and Sat Parkash were released from the Central Jail at Ambala. In a telephone conversation with Frontline from Kurukshetra, Gurmej Singh, who argued for Devi Ram in the Sessions Court, said Devi Ram's family had not received a copy of the release order for more than two months despite having written to the Financial Commissioner and Secretary, Department of Jail. On August 11, 2000, Himat Singh's release order was issued.

Devi Ram appealed in the Punjab and Haryana High Court contending that the pardons were politically motivated. On July 30, 2001, Devi Ram's petition was admitted in the High Court.

Sat Parkash is a co-accused of Ajay Chautala, son of the Chief Minister, in an attempt-to-murder case lodged at the Narwana police station. On April 27, 1996, the two had allegedly attacked Jai Parkash, who was chosen by Bansi Lal's Haryana Vikas Party (HVP) and the BJP to contest against O.P. Chautala in the Assembly elections. Jai Parkash had been with the INLD previously. Jai Parkash stated in the first information report that Ajay Chautala, accompanied by Sat Parkash and 26 others, had challenged him and shot at him, but the intervention of the police and the public saved him. Some of the accused, including Ajay Chautala and Sat Parkash, were arrested on April 29, 1996 and released on bail. Subsequently Sat Parkash was the counting agent for Chautala in the Narwana segment in the last elections. Ajay Chautala is the Member of Parliament from Bhiwani.

Satbir's father was the INLD president of Pehova block in Kurukshetra district. Himat Singh happens to be a relative of Sat Parkash and also an active party worker.

While Devi Ram has challenged the grant of pardon, the family of Krishan Kumar Khandewala of Hansi has given up the battle for justice, under "social pressure". For that family, it is a battle twice lost. Siriyans Kumar Jain, who was awarded life term by the Supreme Court for Krishan Kumar's murder, got his sentence remitted through a Governor's pardon, not once but twice. The pardon was first granted by the HVP-BJP government led by Bansi Lal. The second pardon came thanks to the Chautala government. Ram Nath Bhumla, who was also sentenced in the case, has been found worthy of a similar pardon after the Cabinet recommended his case to the Governor. Both Jain and Bhumla are BJP activists from Hansi.

Krishan Kumar, 30, was the Congress(I) candidate for the post of municipal president in 1987. The contest was primarily between the Congress(I) and the BJP. Krishan Kumar had a good chance of winning as the majority of municipal committee members had reposed faith in him. However, on October 13, 1987, polling day, four persons barged into the cotton ginning factory owned by the Khandewalas at 3-30 a.m. and shot at Krishan Kumar. Those who came to his rescue were beaten up. Some eyewitnesses stated that they saw BJP legislator from Hansi P.K. Choudhary waiting at the factory gate along with some others and leaving with the accused soon after the incident.

Ten persons, including Jain, Bhumla, Chaudhary and Krishan Kumar Jakhar, were tried for offences punishable under Sections 120-B, 148, 302, 452, 392 and 323, all to be read with Section 149 of the IPC and Section 27 of the Arms Act, in the court of the Sessions Judge, Hissar. Three eyewitnesses, including a driver, were examined by the prosecution and the trial court accepted their evidence. A gun owned by Krishan Kumar's brother was recovered from Bhumla. The Sessions Court acquitted five persons while sentencing the five main accused - Ram Nath Bhumla, Siriyans Jain, P.K. Chaudhary, Krishan Kumar Jakhar and Gurvinder Singh - to life imprisonment. This was on March 30, 1990.

The conviction was challenged in the Punjab and Haryana High Court. On August 2, 1990, some four months after the Sessions Court's verdict came, the High Court acquitted P.K. Choudhary, Bhumla and Jain while upholding the conviction of Jakhar, who fired at Krishan Kumar, and Gurvinder Singh, who had attacked his associate. The court stated that both Bhumla and Jain were entitled to the benefit of the doubt. When the matter came up as a Special Leave Petition (SLP) in the Supreme Court, where the appellants were the State of Haryana and Sat Pal, brother of Krishan Kumar, a Bench comprising Justices G.T. Nanavati and V.N. Khare reversed the decision of the High Court, stating that no convincing reasons were given by the court for setting aside the conviction of Bhumla and Siriyans Jain.

It also held that the High Court had not given due weight to all aspects and reasons cited by the trial court in support of its findings. "All the four of them had gone together to the place of the occurrence and had gone away also together. They had come armed with weapons and with a definite purpose, and therefore there was no scope for entertaining any doubt regarding their involvement in the commission of the crime...," the Bench held. It directed the accused to surrender to custody in order to serve the remaining part of their sentence. It, however, upheld the acquittal of P.K. Chaudhary. This was on December 10, 1998, eight years after the High Court's order of acquittal. Jain, instead of surrendering to serve the sentence, filed a clemency petition before Governor Mahabir Prasad on January 15, 1999. The Governor granted him pardon on January 25, 1999 after the Chief Minister and the Legal Remembrancer concluded that it was a fit case where discretion given under Article 161 can be exercised and relief granted.

Sat Pal petitioned the Supreme Court again, which, while allowing the petition, quashed the Governor's order and held that the constitutional power conferred on the Governor was amenable to judicial review on certain limited grounds. It held: "Bearing in mind the parameters of judicial review in relation to an order granting pardon by the Governor, when we examine the case in hand, the conclusion is irresistible that the Governor has not applied his mind to the material on record and has mechanically passed the order just to allow the prisoner to overcome the conviction and sentence passed by this court. It is indeed curious to note that the order dated 25.1.1999 clearly indicates that the Governor of Haryana is pleased to grant pardon remitting the unexpired portion of the sentence passed on Siriyans Kumar Jain, confined in Central Jail, Hissar."

But the court observed that Jain was not confined in the Central Jail at Hissar on that date and that on the other hand, after obtaining the order of pardon and remission of sentence, to give an appearance of compliance to the order of the Supreme Court, he had surrendered before the Sessions Judge, Hissar, on February 2, 1999, and was released the same day following the Governor's order of January 25.

The court further held in its May 1, 2000 order: "The entire file has been produced before us and we note the uncanny haste with which the file has been processed and the unusual haste and zeal shown by the authorities in the matter of exercise of power to grant pardon."

The matter did not end here. Jain again filed a mercy petition in June 2000, and the Chautala government in May 2001 recommended pardon for Jain. Jain now roams free in Hansi. The Khandewala family has decided not to challenge the pardon this time and it is evident that a lot of pressure is being put on them. Jain's father was a well-known RSS activist in Hansi and it is believed that pressure is coming mainly from the BJP.

It is learnt that the Cabinet recommended Bhumla's mercy petition to Governor Parmanand on August 14. Satya Pal has written to the Governor pointing out that Bhumla had been absconding for one and a half years, after the Supreme Court awarded the sentence, and was on parole most of the time, even after surrendering. Sat Pal plans to challenge the pardon after the order is issued.

Advocate-General of Haryana Surya Kant told Frontline that the Constitution had not specified any guidelines for the use of the power to pardon. The apex court had laid down certain guidelines to ensure that the power to pardon was not used on extraneous, arbitrary or mala fide considerations, he said. He declined to comment on the Jasbir murder case, but said that in the Khandewala case he had no reasons to suspect the intentions of the Governor.

There have been other cases of clemency too, but for now the Chautala government is tight-lipped as criticism is mounting.