The Cruelty of Clemency: Mercy Petitions and the Abolitionist Discourse

Examining the issue of mercy petitions in India and the 'progressive' jurisprudence concerning the same from multiple theoretical lenses, ARITRO BOSE and JIBRAAN MANSOOR argue that cruelty still lies at the foundation of the supposed humanised judgments and that the abolitionist movement ought to oppose such cruelty as well.

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IN its ground-breaking report on the death penalty in India, Project 39A, criminal justice research, advocacy and legal aid project, narrates the story of Girish, a man on death row, awaiting the outcome of his mercy petition. Having been convicted for the murder of four, Girish's plea was rejected by the President of India nine and a half years after he first filed it. To Girish, "waiting for 'tomorrow'", day after day, was itself an inescapable "sentence."

The report then presents the precedent established by the Supreme Court in its judgment in the case of Shatrugan Chauhan v. Union of India (2014), it was recognised "undue, inordinate, and unreasonable delay in execution of death sentence … as [a] ground for commutation of [the] sentence."

What do abolitionists make, then, of the problem of 'mercy'? Is its refusal the highest act of cruelty?

Does wrestling control away from the intervening executive allow respite from this cruelty?

And, do judgements like Shatrugan Chauhan reflect a progression towards a more loving, empathetic political imagination, or are they confined by the choice between cruelty and something crueller?

These questions must be addressed in order to inform a future for the abolitionist discourse that is more sensitive to the question of suffering. It is, equally, critical to move away from the project of otherisation that is inherent in any institutionally-oriented, sovereign-bound society.

In the next section, we begin with an understanding of the presidential pardon in India and its relation to the ancient roots of criminal law. The subsequent section explores this relationship by centring the sovereign's act of mercy as the foundation of the sovereign's power. The final section ponders the ramifications of our exploration into the works of French philosopher Jacques Derrida and American philosopher Judith Butler, among others, upon the abolitionist position regarding the death penalty, and beyond.

Also read: Death penalty shows just how political in nature the criminal justice system happens to be in India

The Civilisational Mask of Cruelty

Article 72 of the Indian Constitution bestows jurisdiction on the President to "grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit, or commute the sentence," subject to the restrictions envisaged under Article 74. In its judgment in Epuru Sudhakar & Anr. v. Government of Andhra Pradesh & Ors. (2006)., the Supreme Court by relying on other jurisdictions, noted that the philosophical bedrock for such powers is that "every civilised [emphasis added] country recognises, and has therefore provided for, the pardoning powers to be exercised as an act of grace and humanity in proper cases."

At the very onset, we suspect that, as law professor Amit Bindal notes, the invocation of 'civilised' deeply "echoes the colonial dialect." The civilised identity, Bindal argues, pathologically and anti-reflexively creates a distinction between 'us' and the 'other', or rather, "we who seek to solve the penal barbarism" and the 'other' "who are the recipients of such efforts."

We further worry that this inflated rhetoric of the 'civilized' too readily dispenses with the need for inquiring into moments when these neatly devised typologies collapse. It ignores the fact that in the aftermath of the Nirbhaya executions, sweets were distributed on the streets of India in celebration of the deaths of the accused. We wonder then, as German philosopher Friedrich Nietzche did, why even in severe "punishments there is so much that is festive".

Nietzche offers an answer in On the Genealogy of Morality, suggesting that the "primeval, deeply-rooted, and now perhaps ineradicable idea" of talionic formation draws its strength from the "contractual relationship between debtor and creditor." For every crime, "a payment has to be extracted."

Also read: The Punished by Jahnavi Misra: The saga of 19 death row convicts

Jacques Derrida builds on this argument by noting that in modern legal systems, the creditor is often "granted a psychic reimbursement" in the form of the offer of "the voluptuous pleasure of causing the other to suffer, and cruelly."

This framework of crime, punishment, and the sadistic pleasure in enjoying the suffering of the punished, then allows us to comprehend seemingly progressive judgements like Shatrugan Chouhan in a whole new light.

At first glance, Shatrugan Chouhan gives the judiciary the power to pardon what Derrida calls "the irreversibly unpardoned." In commuting death to life imprisonment, the Court prevents a cruel act as penance for another. For, if, as Derrida puts it, the death penalty returns "the power to pardon" to "God", the ability to resume that power should inspire faith in the judiciary's commitment to justice.

Yet, this proposition is haunted by the stories of Girish and others like him. At the time of the Death Penalty India report's publication, Girish had been in jail for fifteen years, nine of them awaiting clemency. The conscious action of delaying the answer to his plea, of making the individual wait, reinforcing the intimacy between time, cruelty, and the constant, overhanging reminder of one's impending death, only works to extract the talionic payment owed by the debtor. Derrida captures this sentiment when he says that "one cannot think cruelty without time… time that becomes the calculation of the other, time delivered up to the calculating decision of the other… in the figure of the prince, the president, the governor, that is, the sovereign holder of the right to pardon."

Also read: Death penalty is premeditated murder in the name of society's 'collective conscience'

Alongside Girish are also those convicts who do find their clemency pleas accepted. It is, however, a far stretch of the imagination to suggest that they encounter a better fate, in spite of the Shatrugan Chouhan precedent.

In the case of Chetak, another convict who finds mention in the report, whose death sentence was commuted to life imprisonment considering the "delay of three years and ten months in disposal of his mercy petition", the four walls of his cell forever serve as a reminder of his impending end.

If the death penalty indeed signifies the "unpardonable", then confining the debtor to the same space where his suffering was inscribed leaves us with just once inference: the sovereign believes that at times, "the death penalty may not be cruel enough." It is only in this surfeit of cruelty that the sovereign truly imprints its unpardonable signification of the original punishment; the specular pursuits of the sovereign to "see itself" in the psychic spectacle it seeks to create.

The civilisational project of mercy, then, leaves Chetak with "no one to listen to his voice." A subject of the conniving sovereign with no tongue, another victim of attempts to attest legitimacy to its indulgence in perversion. A life more cruel than the cruellest death. 

We wonder, what all needs to be disavowed, for such a life to be seen as a moment of respite, even in our best political imaginations

Also read: Justice A K Sikri and the Death Penalty

Mercy at the Heart of the Theologico-Political

There have been attempts made to locate the issue of mercy petitions as a question subservient to the debate on separation of powers.

Canadian law professor Adam Perry, for example, argues that the constitutional scheme of India would be frustrated if the executive does not remain the sole authority for pardons, and that subsequently, the scope for judicial review as seen in judgments such as Maru Ram v. Union of India & Anr. (1980) needs to be limited.

Such a narrow understanding of the subject not only underestimates the gravity of the power to grant clemency, but also obfuscates the debate that is required in order to extricate the source of the sovereign's powers.

As Derrida reminds us, "the essence of sovereign power, as political but first of all theologico-political power, presents itself, represents itself as the right to decree and to execute a death penalty. Or to pardon arbitrarily, sovereignly."

Also read: Delhi High Court Women Lawyers Forum Debates Death Penalty

Subsequently, we need to recognise the power to grant mercy as "a pardon always outside the law," or to use German jurist Carl Schmitt's vocabulary, as the sovereign deciding on exceptions.

Derrida argues that pardons operate "from the possibility of… self-suspension", of interruption of [law] by the law" which exists "at the foundation of the juridic-political." Since such powers "cannot be juridical; it is the power of a decision that, in itself, does not come under the law and must remain, if not illegal, at least a-legal." [emphasis added]

It is within this sphere of the a-legal that we must place pardons, where the decision to grant mercy or to not grant mercy become "moments of dictatorship." While the Indian experience seeks to complicate such assertions by limitations under Article 74, or judicial review, lawyer Amartya Kanjilal shows us that from Presidents Giani Zail Singh to Pranab Mukherjee, conscious delays or rejections have still haunted the process.

So if this reiteration of the sovereign's theologico-political power – a power which reveals itself in incidents ranging from the executions of Persian poet Al-Hallaj to Greek philosopher Socrates – remains prevalent in the suffering surrounding mercy petitions, how does the abolitionist movement take stock of the situation? Do we make our peace with allowing mercy petitions, as Swiss academic Giordagna Campagna does, and understand such acts as "miracles of mercy?" Or can we dare to engage in more passionate alternatives?

Also read: No statistics to prove deterrence of the death penalty, says Calcutta High Court

A Reversal of Debt

An immediate suggestion within the abolitionist discourse advocates for broader judicial review, and to carry on the trajectory that Indian courts have been taking in attempts to challenge rejections to pardons on the basis of their arbitrariness, or other such grounds.

Such a pursuit, however, is not comprehensive enough to address the systemic nature of the problem. As Bindal points out, within the logic of arbitrariness, attempts to collapse "law's immanent indeterminacy as unequivocally and necessarily 'arbitrary' may not be able to capture the specificity of the violence of the death penalty." More importantly, however, by making arbitrariness the primary ground for contention, the belief in the non-arbitrary decision is still accepted, leaving the sovereign's source theologico-political power intact.

We posit here, therefore, that the terms of this debate need to break out of the constraints of institutional sovereignty, the confines of which often render attempts at de-territorialising crimes deemed as "unpardonable" unachievable. The victim might forgive, but for the sovereign, much like the unconscious, "gratefulness is as foreign as forgiveness."

Following Judith Butler's thought, then, leads us to wonder if the pardon can be understood as "a deinstitutionalising force, including the deinstitutionalisation of sovereignty and the death penalty." Butler's understanding of such a force extends through the sovereign to the notion of prisons as well; a new politics of forgiveness as the "driving force" of deinstitutionalisation.

Also read: Death penalty, solitary confinement and its first cousin

Perhaps a central task for this force, as Canadian academic Catherine Kellogg argues in her reading of Michel Foucault, would be "replacing questions of… guilt and innocence" with a radical political analysis that does not rely on any "moral" or "theological" understanding of cruelty. Kellogg posits that it is only through this framing of the question in terms of theological-morality that the sovereign is able to assume control over cruelty. When we challenge the base of this paradigm, when we overcome the "fantasy of sovereignty" through what Kellogg terms "constant 'vigilance'", more radical futures open up for the abolitionist discourse, extending from the question of the death penalty to the penal organisation of the world at large.

Ironically, the best example of a politics of love and forgiveness is found in theological canon; Christianity's "stroke of genius", which insisted on "having it be the creditor himself who offers himself in sacrifice (via his Son) for the debtor, for the payment of the debtor's debt." Said otherwise, can the abolitionist movement, as Derrida asks, ever imagine this "reversal of the debt, this love?" Can we devise a politics that takes cognizance of our vulnerabilities and our inter-relational selves, and break away from fantasies of the hyphenated powers?  For Girish, for Chetak, and for countless others, the answer will either be a force of liberation or the cost they will bear for the civilisational project.

(Aritro Bose is an Economics graduate from Ashoka University. Jibraan Mansoor is a law student at the Jindal Global Law School, Sonepat, and a graduate of Political Science from Ashoka University. The views expressed are personal.)