India: No More Hazards With Pardon

Last Updated: 26 October 2016
Article by Somasekhar Sundaresan

Abject disregard of relevant factors and apathy in handling mercy petitions led to the SC's intervention.

Last week, this column lauded the Supreme Court's decision to commute death sentences for fifteen convicts to life imprisonment.

One of the points made in it was that pointing to the gravity of the crimes involved is no argument since an award of the death penalty could only have been in cases of grave crimes. There is another dimension to the issue that bothers readers a lot.

One question routinely asked is whether granting pardon from punishment to a convict erodes the sanctity of a punishment legally handed out by due process of law. Another aspect is whether mercy petitions arbitrarily enable a review of the ultimate judicial decision objectively taken earlier on the merits of the crime. Both these issues are important.

They point to what economists would call a "moral hazard" - of whether it erodes the disincentive to commit crime by re-opening even a final sentence in a grave crime. Each of these questions has comprehensive answers.

First, pardon is granted in extraordinary circumstances - it is an exception and not the rule. The decision on whether to pardon, reduce or alter the sentence of punishment is taken on the basis of various supervening circumstances. The power to grant pardon is a discretionary one, exercised only by the President of India or the Governor of the states. The provision is a power i.e. a right of the head of state to make an extraordinary intervention to grant pardon. It is not an obligation that casts a duty on the head of state to grant pardon.

Constitutions of various nations bestow such power because they are conscious that even the judicial system is ultimately manned by human beings who can err. Moreover, a death sentence may been imposed despite noticing that the quality of the trial and the evidence was suspect - for example, the conviction and sentencing of Afzal Guru in the Parliament attack case was driven by the fact that the attack was on the symbol of Indian democracy.

Somewhat like how the British sentenced Bhagat Singh to death after he admittedly bombed the central legislative assembly.

In such circumstances, the Constitution permits discretion to the head of the state to consider whether an intervention would be necessary. Such a power could be exercised due to extraordinary supervening circumstances (say, the convict having become insane) or even purely to achieve the objectives linked to matters of state. For example, when Sarabjit Singh, an Indian convict was sought to be brought back from Pakistan, it was a provision enabling mercy petitions in Pakistan's Constitution that would have been used.

In short, the very same constitutional system that legally metes out punishments also empowers heads of state with extraordinary powers to make extraordinary interventions if circumstances warrant.

Therefore, there is no erosion of legal sanctity at all - the legally-meted conviction remains intact. A criminal is punished for who he is. When supervening circumstances inflict an enormous change on him, the Constitution provides a forum to pardon him - there is no moral hazard.

Second, India's Supreme Court has repeatedly held that a challenge to a grant or refusal of pardon cannot be arbitrary. The check and balance of judicial review against arbitrariness would apply to such cases too, and writ petitions may be entertained.

Therefore, it is necessary for the head of state to be cogent, reasoned and obedient to the guarantee of non-arbitrary conduct when the head of state deals with such petitions. The court would not at all be sitting in another appeal over whether the conviction was meritorious.

The court would solely be reviewing whether any relevant factor was ignored (example: the convict having become insane), or whether irrelevant factors were considered (example: the convict was pious). Therefore, merely because the power to grant or refuse pardon is discretionary, it does not follow that the discretion is absolute.

The state cannot grant or refuse pardon whenever and however it chooses without having to explain itself to the court carrying out the review. A decision refusing pardon should meet with as much reason and application of mind as one granting pardon.

It is the abject disregard of relevant factors such as insanity in some cases, and the absolute arbitrariness and apathy in handling of the petitions that led to the Supreme Court's intervention last week.

If the state had reasonably rejected all those petitions within reasonable time, our society and the convicts would have achieved timely mutual closure. No supervening circumstance would have emerged. There would have been no case for judicial intervention.

Originally published in Mumbai Mirror, Mumbai, Ahmedabad, Pune & Bangalore, January 31, 2014.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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