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Updated: April 18, 2013 00:19 IST

The power to pardon

Gopalkrishna Gandhi
Comment (14)   ·   print   ·   T  T  

‘Sitting on’ mercy petitions is abdication. But ‘disposing’ recommendations for rejection in the manner of an input-output equaliser is automation

Independent India has had 17 Heads of State. Of these, two were Governors General — Lord Louis Mountbatten (1947-1948) and C. Rajagopalachari (1948-1950). They were followed by 15 Presidencies, if we take Babu Rajendra Prasad’s three spells in that office to be the distinct Presidencies that they were ( 1950-1952, 1952-1957, 1957-1962).

Each one of the 17 has had to deal with cases involving what, in the language of common parlance, is called “the power of pardon.” This ‘power’ is the authority which Article 72 of the Constitution of India confers on the Head of State to “… grant pardon or commute the sentence ... in all cases where the sentence is a sentence of death.” This power is not a penthouse provision for the President to luxuriate in, arbitrarily or in a moment of operational surplus.

Sovereign’s prerogative

Article 72 is about a very old but creatively renewed principle of a sovereign’s prerogative to adjudge capital crime against the backdrop of its circumstances, not legalistically but civilisationally. It is an opportunity for the sovereign, now our elected President, the First Citizen of India, to view a crime committed by one fellow citizen against another, which has invited the ultimate punishment, the legal taking away of the right to life, to see if that punishment than which there can be no greater punishment, is merited, deserved, fair, just and, above all, free from any error of judgment by those tasked to judge it.

In other words, the power to pardon is not about punishment as it is about redemption.

Sentencing people to death has been known to human societies, including ours, ever since the chance to commit crimes and the power to punish those have been known. But millennia after the death sentence has been made a part of our penal and punitive consciousnesses, the finer fibres of the human brain were actuated by the Supreme Court’s definitional ruling in 1980 which said the death sentence was to be awarded only in “the rarest of rare cases”. This pronouncement was as pragmatic as it was inspired by the world-wide trend against what was beginning to be seen as “judicial murder.”

When considering the process of the power of pardon, we should be mindful of four facts about it — facts that are so important and foundational that they acquire the status of what may be called ‘truths.’ I will not call them the Four Noble Truths, plagiarising the Buddha, but they are about an order of human behaviour in which the sovereign is one step ahead of society on the civilisational incline. The four may be summarised as:

First — Clemency is not a door which the President may open to let misplaced mercy through; but it is one he may cause to be opened to see if fairness has been blocked at its threshold.

Second — Pardon is not a gift the President may lavish on the criminal; but it is a power that the people of India have conferred on him to use when narrow codes hold a larger justice hostage.

Third — Mercy, when prayed for by one sentenced to death, is not just about an individual’s scream for life against its judicial extinction, but part of humanity’s journey towards a higher condition under law.

Fourth — Article 72 is not about the law, it is about the sovereign’s overview of the human situation involved in capital crime, that sees in it that which the law cannot see or evaluate, only the nation’s anointed guardian can and then again, not to saturate the law’s appetites, but the thirsts of society’s human sensibilities.

The power to pardon as given under Article 72 is a ‘given’ formulation of so many words which each copy of the Constitution of India must reproduce in exactly the same language. The Head of the State, however, is a human being, not a printed text. From predecessors distinct and from successors distinguishable, each Head of State is a thinking, reflecting human being, with views, memories, conditionings, predispositions. He or she can therefore bring a certain philosophy to bear on the matter or, perhaps, none. The President uses his calibrated power to either reject the prayer and thereby turn the rejection into a noose or accept it, as a measure of his confidence that the ends of justice are served through the lesser chastisement of a life-term in prison.

Differing approaches

Lawyers though both were, Governor General Rajagopalachari and President Prasad seem to have had very differing approaches to the death sentence. The conservative Tamil was mostly on the same page as the sentencing judges, though there can be no doubt that he read every line of the case with the thoroughness of a lawyer studying his brief. As the lawyer and independent researcher, Bikram Jeet Batra, tells us in his 2009 study of constitutional clemency, Rajagopalachari received 384 mercy petitions, of which he rejected 318, commuting 66. Prasad was inclined to search for extenuations in the 2,762 mercy petitions he received, of which he rejected 2013, commuting 749. The commuting rate was higher with the reflective Bihari but even more important than the numbers was the manner of his handling the petitions. Batra tells us “In the 12 long years in office the interest shown by President Prasad in mercy petitions certainly played a major role in making the clemency system fairer and more credible. In addition while his rigorous analysis stretched the limited powers available and asserted his moral authority over the executive, his propriety avoided embarrassing confrontations on this front.”

President Radhakrishnan, as Batra tells us, was on the side of the “abolitionists” and started a discussion with Prime Minister Nehru on doing away with capital punishment. President Zakir Husain’s tenure (1967-1969) was attenuated by death but, incredibly, it yet saw the scholar-President take mercy petitions down the Radhakrishnan road. President Giri’s early years, likewise, saw commutation recommendations and their approval.

Two Presidents I was privileged to serve had widely differing views on the subject. By the time President R. Venkataraman began his tenure (1987-1992), the “rarest of rare” principle had brought the number of mercy petitions down. The first year of his tenure (1987-1992), like President Mukherjee’s saw ‘backlog’ mercy petitions — 28-29 of them — being ‘disposed’ of with vim and despatch. He received during his five years in office, a total of merely 39 mercy petitions of which sentences were commuted only in five cases — four commutations were on grounds of delay.

President K.R. Narayanan’s tenure (1997-2002) saw an even smaller number of petitions but even these filtered cases required the power of pardon to have full play during its point in the script, and President Narayanan, when the recommendation was one of rejecting the appeal for commutation, explored the farthest limits of the case’s ‘rare’ ness. In the manner that he probed the recommendation he made it clear to the Home Ministry and, in particular to the sensitive Home Minister Indrajit Gupta, that this was not only no “hanging President” but one who held hanging to have in it that touch of murder that made it twin the crime.

“Sitting on” mercy petitions is abdication. But ‘disposing’ recommendations for rejection in the manner of an input-output equaliser is automation. Article 72 is neither meant to be switched off nor put on a treadmill.

‘Public opinion’

There is such a thing as capital crime; there is such a thing as jurisprudential evolution. And there is of course such a thing as ‘public opinion.’ There are those who would say, and perhaps accurately, that if a referendum were to be held in India today, the hangman will not only stay but have to be paid “overtime.” Terror and crimes against women have given the noose just that dip in grease its immortality needs. But since when has the State become such a three-legged racer with ‘public opinion’? Would our progressive enactments on untouchability, dowry, domestic violence, have stood a chance against the orchestrations of opinion by khap panchayats and their kind? A democracy is about what a people want, but a Democratic Republic is also about what its enlightened New Agers fight to make it what it is meant to be.

The power of pardon as used by its 17 wielders presents a mixed picture. Some of them used Article 72 perfunctorily, even reluctantly, yet some others did so with differential effect, not just for the man under the shadow of the noose but for the future of capital crime and capital punishment. The death penalty may not be abolished in India “tomorrow” but that is where it has to go. With the “rarest of rare” principle, judges can no longer be “exonerating judges” and “hanging judges”. Likewise, there should be no “pardoning President,” no “hanging President,” only a sagacious and sublimating use of the power of pardon by one placed at the tallest summit of our evolving Statehood.

(Gopalkrishna Gandhi is a former Governor of West Bengal)

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there should be no pardon for this hardcore criminals. there is
increasing mindset among criminals of getting away from punishment and
this author is just helping them out by his foolish courtesy. think of
people died because of him and many people who may die of this delay and
relaxed environment of dealing with criminals. certainity is absent in
punishment thats the reason crimes are rising.

from:  karthik
Posted on: Apr 18, 2013 at 19:34 IST

An article full of rhetoric which at the same time gives a good
insight into how the past Presidents handled this issue.

Unfortunately the author has failed to discuss the details of the
procedure that is now in practice in arriving at the decisions.
There are lots of comments in the internet,that the President has to
act according to the recommendations of the Council of Ministers. In
the light of this, will someone enlighten me, how independent is the
President in deciding on the petitions. Moreover, is the President
subject to any guidelines on taking such decisions or is he free to
use his judgement based on his knowledge, experience and
convictions. This will enable the public to have an informed opinion
on this difficult issue rather than quoting scriptures and human
rights to blur the issue. And, Dear Editor kindly ensure that it is
written in simple English so everyone can understand it
easily.Things written in flowery language sound nice, but on
examination prove vacuous.

from:  DR.R.VENKATARAMAN
Posted on: Apr 18, 2013 at 16:16 IST

the article reinforces the belief that in matters of law what is required is a good command over the english language and then the the law can be what you want it to be.

from:  v.v.r.sarma
Posted on: Apr 18, 2013 at 15:32 IST

Interesting. However, I expected more from the article. It would be
nice to have some exploration of the following:
1. Once the President 'pardons' or 'rejects', how can there be another
appeal in courts? What is the point of having a non-legal authority
decide on the petition if it can be challenged in the courts anyway.
2. Why is delay in decision a ground for commutation? I have heard the
argument that a delay is unfair and cruel to the petitioner. If so,
why do they appeal? Or why don't they withdraw their appeal if they
feel there is an undue delay? Everybody knows that our judicial system
is being played to the maximum with these delaying tactics. First we
allow long delays of cases on medical/social grounds. Once we have a
decision, there is an even longer (and multiple level) appeals
process. If somehow we get through that, then in case of capital
punishments, we get a decades spanning mercy appeals. Once those are
somehow decided, we again allow appeals on the petitions?

from:  Tom
Posted on: Apr 18, 2013 at 14:02 IST

The constitution starts with "We, the people . . ." and therefore to arrogantly dismiss public opinion as an un-necessary three-legged albatross tied to the neck of the government is grossly grotesque by any stretch of imagination. I am sure that had Gandhiji been alive today, he would have taken exception to this new meaning of 'Swarajya' which certainly was not what he fought for. Mr. Gandhi is comparing the incomparables when he cites untouchability and capital punishment in the same breath. Untouchability is against basic human dignity, while punishment for a crime, including the capital punishment, is not. If 'redemption' is the goal, why does the 'Untouchability Law' itself prescribes punishment for its practitioners ? They should be allowed to redeem themselves. Dowry, banning temple entry, sexual harassment attempt to target a class of people for whom they are. Capital punishment is not. It is awarded to a criminal, irrespective of any class, in proportion to the crime.

from:  S.Sridharan
Posted on: Apr 18, 2013 at 13:21 IST

I think that death should be given to one who deserves it and this is a part of indian legacy that those who commit crimes against human being were severely punished by Gods and this task is now upto our goverment and supreme court to provide the justice to all and one who is doing a henious crime should be hanged as we cant rely on hell for punishments.And about changing someone to be good again should be in case of low areted crimes like loot,robbery.But in this world no one has right to kill someone or dblast a bomb killing many or try to kill people my making plans this is not acceptable in past and will not be in future.

from:  Rishabh sharma
Posted on: Apr 18, 2013 at 12:52 IST

Good article about constitutional obligations which are seen as power by some. It looks like the author is trying to say that public are ignorant and should not be allowed to stymie the development of the Republic into what is visualized by "Enlightened New Agers" by making it a three-legged race!? The public anger, as can be easily inferred by anyone, was a result of a sustained campaign by the leading news media to divert the public attention from issues of corruption that was becoming increasingly irksome to the top leadership of the country. Otherwise, there were horrific rape cases before and after the Delhi bus incident, but media's sustenance on this one is more about timing than the seriousness of the issue. If public wanted death sentence, it was more out of exasperation with the total collapse of law and order system that is neither fair nor potent.
And public is not all that senseless mob and majority of public is not in unison with Khaps as the author is inclined to thinkg

from:  Sandy
Posted on: Apr 18, 2013 at 12:48 IST

Today's article "The power to pardon" puts forth the concern and problem
in a perfect way but where is the real solution. I want to request
Indian parliament to introduce an amendment which forces judiciary to
order capital punishment within a time line say 60 days and it can be
stayed only with directions from higher competent authority which could
be higher court or president. If disposal of some appeal or plea takes
longer time then 60 days an additional time of 60 days may be allowed
but with the stay order received with in the prescribed time line.

from:  sushil surana
Posted on: Apr 18, 2013 at 11:49 IST

The constitution starts with "We, the people . . ." and therefore to arrogantly dismiss public opinion as an un-necessary three-legged albatross tied to the neck of the government is grossly grotesque by any stretch of imagination. I am sure that had Gandhiji been alive today, he would have taken exception to this new meaning of 'Swarajya' which certainly was not what he fought for. Mr. Gandhi is comparing the incomparables when he cites untouchability and capital punishment in the same breath. Untouchability is against basic human dignity, while punishment for a crime, including the capital punishment, is not. If 'redemption' is the goal, why does the 'Untouchability Law' itself prescribes punishment for its practitioners ? They should be allowed to redeem themselves. Dowry, banning temple entry, sexual harassment attempt to target a class of people for whom they are. Capital punishment is not. It is awarded to a criminal, irrespective of any class, in proportion to the crime.

from:  S.Sridharan
Posted on: Apr 18, 2013 at 11:43 IST

The whole nation was thunderstruck when President Pratibha Patil used
the power to pardon death-row convicts up to 35 commutations of death
sentences during her term which will be over 90 per cent of India's
total death sentences commuted ever. Despite being a woman President
Patil made history by pardoning five rapists in her tenure wherein
culprits have murdered their victims. All most all convicts saved by
her from gallows were connected with brutal multiple murders and
gruesome crimes on children in savage ways unimaginable to humanity.

from:  Madan Menon Thottasseri
Posted on: Apr 18, 2013 at 11:41 IST

Thank you! Dear Hindu.

from:  G Parameswaran
Posted on: Apr 18, 2013 at 11:10 IST

The worst crime one can imagine is an act of war against our country . But terrorists would revel at the opportunity of being executed by 'their enemy state' because in their eyes would obtain martyrdom and serve as an inspiration for others waiting to mount an attack on India. Then why should we willingly play into their hands ? How will death be a punishment to these men? Look at the case of Afzal Guru and the violence and politics that were played in his name . It is time India became a more mature state think about other avenues of punishment .

from:  Jayakrishnan Menon T N
Posted on: Apr 18, 2013 at 10:50 IST

A lot of hot discussions are taking place on "the power of pardon". The society is so much concerned with humane and inhumane actions that it had decided to pardon the culprits[to withdraw the death penalty ]. It is really pathetic to realize that the agony and trauma faced by the culprits weigh more than the pain undergone by the relatives of the victims. What a demo'CRACY'???

from:  Renu
Posted on: Apr 18, 2013 at 08:34 IST

Many thanks to the author of the article for his lucid explanation of
issues involved. No one likes to give some one else a right to take
that some one’s life. That is the foundation of humanity. However, in
practice life is far more complex and it is quite usual to find
justification for killing others for a nation’s pride or for family
honour or for disturbing social harmony, as some may claim.
In any civil society laws are made by individuals, retained in statute
books by individuals and are interpreted too by individuals or groups
of them. When a killer forgets other’s right to live peacefully or
deny him or her that right, crime takes place. Question is whether the
society should spend its enormous time for saving a killer’s life when
it has been established in the Court of law that crime was committed
mercilessly. My second query is why should the society bear cost of
keeping alive a criminal? Does an act of pardon in every case make
the society more humane?

from:  Narendra M Apte
Posted on: Apr 18, 2013 at 07:42 IST
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