The convicted, now jailed, former Minister and Nuvem MLA Francisco (Mickky) Pacheco after having tried every possible stunt has now sought recourse of Article 161 of the Constitution of India which confers on the Governor the right to grant pardon to any person convicted. Pacheco on June 1 started undergoing his six-month jail sentence for having in 2006 as a minister slapped Electricity department Junior Engineer Kapil Natekar.
The nature and scope of the power of pardon and the extent of judicial review over such power has come up for consideration in a catena of cases and has now virtually crystallized into a rule of law.
In Maru Ram & Ors v Union of India & Ors, Krishna Iyer, speaking for the Constitution Bench, held that although the power under Art 161 was very wide, it could not “run riot”. He held that no legal power can run unruly like John Gilpin on the horse, but “must keep sensibly to a steady course”. According to him, “all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power.”
In Swaran Singh v State of UP & Ors, a three-judge Bench held that “this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. But if such power was exercised arbitrarily, malafide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it.”
Pardon is to help save an innocent person from being punished due to miscarriage of justice or in a case of doubtful conviction. The pardoning power is founded on consideration of public good and is to be exercised on the ground of public welfare. This power cannot be misused to deviously rescue the likes of Pacheco whose conviction by four courts has been upheld by the Supreme Court. Any attempt to grant Pacheco a pardon would amount to making a mockery of the judiciary and the justice delivery system.
It is a dubious distinction achieved by Goa that for the first time an MLA is undergoing imprisonment on conviction. If Pacheco is indeed granted pardon, he would be the first such convict in Goa to be pardoned under Article 161 of the Constitution. This would then lead to other convicts citing this precedent and demanding that they, too, be pardoned.
Does there exist even one single valid reason why Pacheco, be extended this benefit of pardon? Should the government, by virtue of its brute majority, act high-handedly and arrogantly to shield Pacheco it would be the last lethal nail in its coffin.
