There should not be too many of us who do not pinch our noses when the rotten smell of the so-called apologies of people in power, typically politicians, reaches us. These apologies are fetid because they are delayed, offered only when cornered, and are insincere to the core. On top of this, they are also vague, invariably starting off, “If I have offended you in anyway, I apologize.” The escape clause cannot escape notice. The problem arises due to the non-definition of “offensive”, except in a subjective sense.
In my mind, the same problem crops up in the case of “mercy” towards death row convicts. A little explanation is in order. I am not an expert on Indian Constitution. I know what I would like the society to see, along with me – death penalty is barbarous.
A few years ago Arnold Schwarzenegger, the then Governor of California, refused to offer clemency to one of the death row convicts. What was the consequence, besides the convict being murdered? The Austrian government wanted to revoke his Austrian citizenship because he did not commute the death penalty.
On a less political level, his native town, which had earlier acknowledged that a local boy had made good in the US (as a film star) by naming a stadium in his name, unceremoniously dropped that name, for the same reason. I think he escaped the ire of the Austrian government by going technical but he went nowhere with the civil society in his native town. As befitting an actor, his act of surrender to the sentiments of his home town was arrogance personified.
Why this long story? Schwarzenegger was acknowledging that he, as an individual, did not deserve to be celebrated by his native town. Only on technical grounds he could escape the institutional censure and more. This, in my opinion, goes to show that mercy petitions carry more weight at the subjective level. The town held him responsible.
Now, I come to the Indian situation regarding mercy petitions addressed to the President of India.
Mercy, to be perceived as noble, should be offered unasked. I do not understand why the condemned should plead for mercy. Every death sentence confirmed by the Supreme Court should automatically go to the President, for him or her to decide whether to the spare the life of an individual and/or the conscience of the society, of which he or she is the titular head. The translation of society’s conscience is a subjective matter. Why should the condemned intrude into this subjective process by pleading for mercy? I haven’t a clue.
It should be offered or foreclosed instantaneously. It should not carry any institutional baggage. I do not understand how the Home Ministry can recommend mercy towards or reject a mercy petition of the convict through an institutional process. Has the Supreme Court not put a full stop to any such established procedures? Is the Home Ministry invalidating – whatever nice words one may use, but this is the stark reality – the Supreme Court pronouncement? It may be more acceptable if the president, as the head of the State, went beyond the Supreme Court. But for the political executive to do so?
Perhaps it is time to revisit the Constitution to allow the President not to seek the political executive’s recommendations on mercy petitions.
Offering mercy is an instinct. It is not driven by intellectual debates, even if it be within oneself. A mercy that jumps through hoops is not noble. A mercy that is not noble is no mercy at all.
Mercy on offer is much delayed. The process moves at glacial speed. The issue occupies front page only under compulsion, when the political executive has to extricate itself out of tight corners. Who is granting this mercy, the president, the political executive or the society at large is never clear. Therefore it is insincere. So, you have begun to see the parallel between mercy petitions and politicians’ apologies.
My solution (which I will show later is no solution at all!) is this – the Supreme Court pronounces, the President disposes. Fully automated. In real time. No room for political maneuvering. No more legalese. No wastage of precious resources of the nation (tax money, in simple terms). It is a binary question. To hang or not to hang. One word decision. Fast process.
Not so fast. Arbitrariness creeps in. The instinct of the current president is perhaps different than that of her predecessor. It appears that A P J Abdul Kalam sat on a number of such petitions to avoid taking the necessary yet uncomfortable decisions. That is, the action taken on a mercy petition is subjective. Mercy is only subjectively defined.
Imagine then the following: a convict on death row could possibly choose when his case would come up before the Supreme Court. His lawyers will find ways to get the decision pronounced when a “softy” is the president. No “hanging president” for the defense lawyers. The prosecution, the state in this case, would look for exactly the opposite. Arbitrariness.
While it is claimed that justice is blind, it is never claimed that it is arbitrary. It is highly structured and depends on straitjacketed procedures. Yet, at the last step, in the case of death penalty, it has become arbitrary.
Hence, the solution I offered earlier is no solution at all. It stinks.
I have shown that the existing system stinks. I am showing that another system that I had mooted stinks too. We, by having the death penalty on our statutes, are making our society stink, and stoop to the level of powerful people offering pseudo-apologies.
Raghuram Ekambaram
In my mind, the same problem crops up in the case of “mercy” towards death row convicts. A little explanation is in order. I am not an expert on Indian Constitution. I know what I would like the society to see, along with me – death penalty is barbarous.
A few years ago Arnold Schwarzenegger, the then Governor of California, refused to offer clemency to one of the death row convicts. What was the consequence, besides the convict being murdered? The Austrian government wanted to revoke his Austrian citizenship because he did not commute the death penalty.
On a less political level, his native town, which had earlier acknowledged that a local boy had made good in the US (as a film star) by naming a stadium in his name, unceremoniously dropped that name, for the same reason. I think he escaped the ire of the Austrian government by going technical but he went nowhere with the civil society in his native town. As befitting an actor, his act of surrender to the sentiments of his home town was arrogance personified.
Why this long story? Schwarzenegger was acknowledging that he, as an individual, did not deserve to be celebrated by his native town. Only on technical grounds he could escape the institutional censure and more. This, in my opinion, goes to show that mercy petitions carry more weight at the subjective level. The town held him responsible.
Now, I come to the Indian situation regarding mercy petitions addressed to the President of India.
Mercy, to be perceived as noble, should be offered unasked. I do not understand why the condemned should plead for mercy. Every death sentence confirmed by the Supreme Court should automatically go to the President, for him or her to decide whether to the spare the life of an individual and/or the conscience of the society, of which he or she is the titular head. The translation of society’s conscience is a subjective matter. Why should the condemned intrude into this subjective process by pleading for mercy? I haven’t a clue.
It should be offered or foreclosed instantaneously. It should not carry any institutional baggage. I do not understand how the Home Ministry can recommend mercy towards or reject a mercy petition of the convict through an institutional process. Has the Supreme Court not put a full stop to any such established procedures? Is the Home Ministry invalidating – whatever nice words one may use, but this is the stark reality – the Supreme Court pronouncement? It may be more acceptable if the president, as the head of the State, went beyond the Supreme Court. But for the political executive to do so?
Perhaps it is time to revisit the Constitution to allow the President not to seek the political executive’s recommendations on mercy petitions.
Offering mercy is an instinct. It is not driven by intellectual debates, even if it be within oneself. A mercy that jumps through hoops is not noble. A mercy that is not noble is no mercy at all.
Mercy on offer is much delayed. The process moves at glacial speed. The issue occupies front page only under compulsion, when the political executive has to extricate itself out of tight corners. Who is granting this mercy, the president, the political executive or the society at large is never clear. Therefore it is insincere. So, you have begun to see the parallel between mercy petitions and politicians’ apologies.
My solution (which I will show later is no solution at all!) is this – the Supreme Court pronounces, the President disposes. Fully automated. In real time. No room for political maneuvering. No more legalese. No wastage of precious resources of the nation (tax money, in simple terms). It is a binary question. To hang or not to hang. One word decision. Fast process.
Not so fast. Arbitrariness creeps in. The instinct of the current president is perhaps different than that of her predecessor. It appears that A P J Abdul Kalam sat on a number of such petitions to avoid taking the necessary yet uncomfortable decisions. That is, the action taken on a mercy petition is subjective. Mercy is only subjectively defined.
Imagine then the following: a convict on death row could possibly choose when his case would come up before the Supreme Court. His lawyers will find ways to get the decision pronounced when a “softy” is the president. No “hanging president” for the defense lawyers. The prosecution, the state in this case, would look for exactly the opposite. Arbitrariness.
While it is claimed that justice is blind, it is never claimed that it is arbitrary. It is highly structured and depends on straitjacketed procedures. Yet, at the last step, in the case of death penalty, it has become arbitrary.
Hence, the solution I offered earlier is no solution at all. It stinks.
I have shown that the existing system stinks. I am showing that another system that I had mooted stinks too. We, by having the death penalty on our statutes, are making our society stink, and stoop to the level of powerful people offering pseudo-apologies.
Raghuram Ekambaram
12 comments:
The issue is whether death penalty should be there or not.Having a penalty and diluting it with mercy petitions have no meaning as many political processes would creep in.
Either you have full death penalty and no mercy
or
Have mercy and no death penalty!
Raghu, I keep a copy of the Constitution on my desk, and was tempted to read Article 72 with case laws and interpretations available in the version of the Constitution that I have.[ Tenth edition of 'Constitution of India' by VN Shukla, revised by Mahendra P Singh, published by Eastern Book Company.]
It is written as commentary under the Article 72 that pardon (including reprieve, respite, remission of punishment etc) is an act of grace.It cannot be demanded as a matter of right. The power to grant pardon is an executive act and not a judicial act. The exercise of this power by the President would not in any way alter the judgement of the court qua judgement or interfere with the course of justice.
Moreover, in Maru Ram vs UOI case[AIR 1980 SC 2147,2170], apparantly, Supreme Court has stated that this power to grant pardon, reprieve etc) cannot run riot and must keep sensibly to a steady course.In the same judgement, it has been stated that tThe question as to the President's power under Article 72 falls squarely within the judicial domain and can be examined by the Court by way of judicial review.
I thought of sharing this to explain why claim to mercy should not be automatic, referring to your wish list that every death sentence should automatically go to the President.
Also no precedures have been laid uner the Constitution for the President to follow, while deciding a case referred for pardon, commutation of sentence etc. So asking for comment of MHA or any other Ministry is purely the discretion of the President concerned, taking advantage of the silence in the Constitutional provisions.
DS sir, that is precisely it ... it is an irreconcilable pair of options. This is how I see the statute. And, it is for those who endorse death penalty to agree that there should not EVER be any compassion in this regard. It is truly binary.
Thanks a lot.
Raghuram Ekambaram
There should be a specific list for which Death Penalty is to be awarded and anybody who commits crime in that list should be hanged. Death Penalty is a must in such case and no pardon should be allowed
But balu, however much stringently you make up that list, there will always be shades of grey. The issue can NEVER be black and white. Then, you will come up against the brick wall of arbitrariness. Take the case of Bhagat Singh, for example. Did the state-sanctioned murder of the killer of Indira Gandhi stop the assasination of Rajiv Gandhi? It would never happen.
This is what I'll argue till kingdom come.
Raghuram Ekambaram
The existing system stinks, I agree. Justice should not stink. But unfortunately justice also stinks today. How many of our 'justices' have been proved unjust/corrupt already?
When you say that a mercy petition should be dealt with instantly, I think you are asking for too much from the Indian system that never delivers anything without quite many under-the-table deals.
Arguing this way, you know, I'm beginning to be converted to the abolition of death penalty. I think no human being has the right to sit in judgment over another human being.
Matheikal,about instant death penalty, I was being a Devil's Advocate, better than Karan Thapar can ever be!
I am not popping the cork on the champagne bottle, yet! Every which way I look at death penalty, I come to one conclusion and only one. There is no place for death penalty in this brimming-with-evil society.
I will wait for your certified conversion, however delayed it may be. There is something to be said about toiling to get to where one wants to be.
Raghuram Ekambaram
Raghu, I had written a fairly long comment yesterday which showed up on your blog before I logged out..it has now vanished. Blogger is also doing a Sulekha it seems...hahahha.
May be I will try to reconstruct what I had said and post again, keeping my fingers crossed.
I am sure I am in for a dishum-dishum with you Aditi :))))) Can't wait ... sorry for Blogger not working any better
Raghuram Ekambaram
After the bomb blast ‘claimed’ to be done to demand repeal of death sentence for Afzal Guru, of course the hard line position that I have vis a vis nothing short of death penalty for terror convicts has just got harder. A dead terrorist is a dead terrorist, and she should be hanged as soon as finally convicted under due process of law to preclude cases of future blackmail and nuisance. I am NOT saying that in such cases death sentence will be a ‘deterrent’, terrorism is a separate ball game, but it will be a potent executive instrument for effective governance.
Now for reconstructing in brief the gist of what I said earlier. Under Article 72 of the Constitution, President has powers for pardon, reprieve, commuting sentence for lesser punishment etc for various crimes, including in all cases where death sentence is pronounced. As per the ‘commentary’ and ‘case laws’ on this Article,
(i) A pardon (and other actions listed) is an act of grace. It cannot be demanded as a matter of right.
(ii) Acting under this Article is an executive act and not a judicial act. It follows that the exercise of this power would not in any way alter the judgment of the court qua judgment, and the exercise of such right would not in any way interfere with the course of justice.
(iii) This executive clemency exists to afford relief from ‘undue harshness’ or ‘evident mistake’ in the operation or enforcement of the criminal law. It is a check entrusted to the executive for special cases, and this discretion is entrusted to the highest officer in the nation in confidence that he will not abuse it.
(iv) The scope of the power of the President to commute a death sentence has been left open by the Courts after observing that whether a case is appropriate for exercise of power conferred by Article 72 depends upon the facts and circumstances of each particular case. The constraints subject to which this power is to be exercised has not yet been judicially laid down, also stating categorically that ‘it may not be possible to lay down any precise, clearly defined and sufficiently channelized guidelines’. (This explains the peculiar cases of the Prez asking MHA for advise, conveniently popularized by the peoples’ prez to avoid taking a decision).
(v) Moreover, Supreme Court has laid down that the power of pardon etc under Article 72 cannot run riot and the question as to the area of the President’s power under Article 72 falls squarely within the judicial domain. The exercise of President’s power under Article 72 is subject to judicial review.
The above is to give a background to ‘why’ every death sentence by Supreme Court cannot be ‘automatically’ referred to the President for clemency. I feel that what is necessary is that a time period should be fixed through a Constitutional amendment for the Prez to say yes or no to a mercy petition, and if no decision comes, it should be a deemed refusal, in order to force the President to bite the bullet.
Aditi, thanks for the details. But my queries have not been answered, as far as I can see.
When I deal with death penalty, I deal with it truly objectively - it is state-sanctioned murder. That is it. No subjectivity comes into the picture. I do not care about the law. If the law comes in the way, I argue for changing it.
It is mere coincidence that I bought a book Re-imagining India (a collection of esays) issued by the Institute of Social Sciences and I am reading through Ashis Nandy's Foreword and I quote from that: "It is no accident that the Indian state has always resisted formally giving up two major instruemnts of terror it has wielded - torture and death penalty." This is a matter of state repression, the writer says. And, I do not take issues with him on this!
I do not agree the fine distinctions between executive and judicial acts. The simple fact is what the Supreme Court has said is nullified through an arbitrary executive act. This is NOT a rule based society. Why then a Supreme Court at all, and why is it mandatory that an appeal to it should be filed?
And death penalty can never be a solution for "nuisance" - this is the word you used and I was shocked by it. But I recognize, different strokes for different folks.
Tou said, "This executive clemency exists to afford relief from ‘undue harshness’ or ‘evident mistake’ in the operation or enforcement of the criminal law." Aditi, THIS IS THE EXACT REASON I brought Schwazenegger into the argument. This is what he argued that he did not have - no issue of "undue harshness" or "evident istake". This was too technical that did not fly with the Austrian pubmic. It does not fly with me also. If you are going technical then call it technical - there is no mercy or clemency in it. Take the SC to task in doing its job so carelessly. Why let them go? Sorry, I would like to be tough on the judges.
Anyway, you do understand that we are tugging in opposite directions, each deeply anchored. Let us see.
Thanks truly for adding.
Raghuram Ekambaram
Raghu,I wish you had seen beyond mere polemics in the word 'nuisance' that I used in passing, then you would not have been shocked. :).
Death penalty does not stink, what stinks is the 'abuse' of there not being any guidelines either in the Constitution , nor in the judicial case laws while interpreting the Constitution, for the Prez who is faced with a mercy petition on how to deal with it, and how soon she must decide.
The Schwarzenegger example just shows how 'emotional' civil society reactions tend to be, in addition to how high-handedly self-rigtheous Governments might react.
India gave its word that Abu Salem would not be hanged in order to get him extradited from Portugal, and now this Salem has dreams of contesting elections in not so future a date. Who are we appeasing in our anxiousness to be so humane towards vermins in mere human forms, sometimes I wonder.
Sometimes I also wonder if death penalty is 'State sponsored' murder,what is the other way to sterilise and disinfect the society of the vermins, the fiends in human form. Vigilante justice?I am not so comfortable with that, but it seems to be the inevitable conclusion, more 'encounter' deaths, more cases of 'suicide'.
Please don't bother to respond, Raghu, I was using your space just to think aloud. :))
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