The Power to Pardon

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)