The letter written by Justice Katju to the governor of Maharashtra seeking a pardon for Sanjay Dutt, makes one thankful for the assimilation of the words “facepalm” and “headdesk” into our active vocabularies.

More seriously though, it worries me that senior public figures such as him would use such flimsy arguments to try and secure a pardon for someone accused of such a serious crime. The ridiculousness of the “Gandhigiri” argument apart, there are many reasons why Justice Katju’s letter does not even begin to make a credible case for Sanju baba’s pardon.

“The power of pardon under Article 161 by the Constitution is different from the judicial power. The Governor/President can grant pardon or reduce the sentence of the Court, even if a minimum is prescribed. Hence there is no doubt that the Governor can grant pardon/reduce the sentence. For example in the case of Commander Nanavati who was held guilty of murder, the Governor gave him pardon although the minimum sentence for murder is life sentence.”

The Justice goes on to state that since Dutt’s crime is less serious than that of murder (as in Commander Nanavati’s case), a pardon should be considered. To my mind, the two cases do not even begin to compare. Cdr Kawas Manekshaw Nanavati was a naval officer who, in April 1959, shot dead his friend Prem Ahuja after he found out that he had been having an affair with his wife, Sylvia Nanavati. But it wasn’t as simple as that. Apparently, Cdr Nanavati wanted to shoot himself. However, he first asked Ahuja whether or not he was willing to accept Sylvia and his children. After Ahuja supposedly said, “Do I have to marry every woman that I sleep with…Get the hell out of here…” a scuffle ensued, in which it is claimed Cdr Nanavati shot his friend “by mistake”. The prosecution argued though that it was premeditated murder. The long and short of it was that Cdr Nanavati was found not guilty of murder by a jury. The judge found it to be a miscarriage of justice and the case went to re-trial where the prosecution’s version was upheld, he was found guilty and sentenced to life imprisonment. After serving three years of his sentence, he was pardoned by the then-Governor of Maharashtra, Vijaylakshmi Pandit. Yet, there is one crucial difference between Cdr Nanavati’s and Dutt’s case – Cdr Nanavati voluntarily surrendered to the Provost Marshall of the Western Naval Command and confessed to the murder. Moreover, if the Nanavati pardon is to be the precedent for and the pivot of Justice Katju’s argument, let’s not forget that the Commander was granted a pardon only after Ahuja’s sister granted the permission to do so. This is an important detail because it shows that the Nanavati case was between two individuals and the law. Ultimately, it was Ahuja’s next of kin who suffered the most and whose prerogative it was to grant that permission. Sanjay Dutt’s conviction is between a man, the law and society. In such a scenario, who has the prerogative to give such a permission?

Justice Katju goes on to list six reasons why Dutt should be excused of his sentence. In short:

a)    He has suffered for 20 years, had to seek permission for foreign shoots, could not secure bank loans etc.

b)    He has served 18 months of his sentence

c)    He is married and has small children

d)    He is not a terrorist, nor was he involved in the bomb blasts

e)    His parents worked for the good of society and often boosted the morale of troops at the border

f)     He has revived the message of the Mahatma through his films

This is the point where you headdesk. If Sanjay Dutt’s filmography on IMDB is to be believed, he has had the luxury of acting in 91 films from 1994 to 2013. In the interim, he got married and had children. In short, despite the “stress” that he might have faced, he has led a fulfilling personal and professional life which also benefited from the adulation of his fan following. This is much more than what can be said for non-celebrities acquitted of terrorism charges and not found guilty of any crime. Also, by the logic of point “e”, would Justice Katju support the dropping of charges against Air Chief Marshal (retd) SP Tyagi? After all, one does not rise to being the head of the Air Force without having served the nation to some extent. Why not then look away from the allegations of bribery, considering that he received the Vayu Sena Medal for distinguished service as well as the Ati Vishisht Seva Medal and the Param Vashist Seva Medal? Surely, one’s own service to the nation holds more sway than the service of one’s parents?

Justice Katju asked on NDTV 24X7 if we wanted to extract a “pound of flesh” from Sanjay Dutt (Left, Right and Center, March 22, 2013). I assume the implication was that if he has served 18 months in prison and is a reformed man, he should be let go. There is no reason why we should be apologetic about the retributive function of criminal justice. It is widely recognised that retribution, deterrence and reformation are the three aims of sentencing. If by “pound of flesh” Justice Katju is asking if Sanjay Dutt should be subject to retribution, the answer is yes.  Tempered retribution determined after a trial, under conditions which respect human rights and within legal limitations is important for closure and to ensure that vigilante justice doesn’t take over. It is nothing to be ashamed of. Moreover, the retributive act is important for the sentencing to fulfil its aim of deterrence.

Let’s be clear about one thing. Sanjay Dutt has been convicted of a serious crime. The consequences of hobnobbing with gangsters, procuring AK 56 rifles and grenades and then trying to destroy them would have much graver consequences for the rest of us than they have had for Sanjay Dutt. Though in all fairness it may be disingenuous to accuse Justice Katju of being in awe of Dutt’s celebrity, such a pardon will reinforce the notion that there is a separate law for the rich and the famous.

In the past, Justice Katju has waxed eloquent on how 90% of Indians are idiots and we are a poverty-stricken nation because we are unscientific, believe in astrology and pay way too much attention to filmstars. Yet, that does not explain why the United States, a nation where Kim Kardashian is famous for being famous and where the creationism v/s evolution debate gets serious attention, is so much more developed than India. A better explanation is that the United States has better institutions than India. Acemoglu and Robinson have written an entire book on the subject (Why Nations Fail) and have talked about how equality before the law (among other things) ensures that a larger chunk of a nation’s citizens can access the means to prosperity and economic success. If the good Justice does want to genuinely see the development of India, he would agree that Dutt’s case is a good motif to illustrate that everyone faces the same economic incentives and punitive deterrents under a genuinely democratic system. This opportunity must not be squandered.

Justice Katju may have been reminded of Portia saying that justice should be tempered with mercy but maybe, a verse from Rudyard Kipling is more apt in portraying the consequences of not pursuing the true course of justice:

Across a world where all men grieve

And grieving strive the more

The great days range like tides and leave

Our dead on every shore

Heavy the load we undergo

And our own hands prepare

If we have to parley with the foe

The load our sons must bear

The views expressed by the author are personal.

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