Using Clemency to Bring Non-Violence into State Policy

[dropcap]T[/dropcap]HE ghastly crime of rape and murder for which the Nirbhaya four are convicted is a heart-breaking reminder of the unimaginable brutality of violence and the immeasurable value of non-violence. The perpetrators must be held fully accountable.  

The question before us is whether violent retribution ("giving back evil equal to evil done")  is the right way to hold them accountable, i.e., rape them (apparently already done on our behalf in jail) and kill them (to be done shortly in our name). 

The answer depends on who you ask. Dr B.R. Ambedkar gave us his answer seventy years ago. Addressing the Constituent Assembly on June 3, 1949, he asserted that India "by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can…I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether." 

The question before us is whether violent retribution is the right way to hold them accountable, i.e., rape them and kill them.

Dr Ambedkar must have had in mind those who follow native traditions of India in which non-violence is an end in itself ('deontological', i.e., morally obligatory regardless of consequences) and which therefore have not sought to dominate and exploit nature or humanity, nor pursued empire or "Vishwa Guru" status, seeking instead a life based as far as possible on non-violence, freedom and peace.

Legacy of Gandhi and Ambedkar

On the other hand, Aryan and Abrahamic traditions and some social and political ideologies believe in the legitimacy of justified violence. 

Deontological non-violence, central to the national freedom movement led by Gandhiji, was never adopted after independence by the Indian State led by his own most devoted followers. They chose instead to retain the colonial and feudal ideology of justified violence, including the death penalty. The Constituent Assembly, led by them, entirely omitted even the word 'non-violence' from the Constitution.

Indian officials who collaborate in the execution of a convict must realize that in doing so they directly oppose Gandhiji and Dr Ambedkar. They wound our unique native (Aadi) tradition of deontological non-violence. They diminish India's global position as the beacon of non-violence. They keep India in a hall of shame of countries that are so spiritually, morally and intellectually bankrupt that they can find no better way of dealing with odious criminals than killing them. That the noose inequitably, unequally and often unjustly falls on the necks of the poorest is by itself an irrefutable reason for ending capital punishment in India.

Violence begets violence

Only a non-violent response to violence can break the unending cycle of violence. A less violent way to hold the Nirbhaya four accountable is for the President to use his clemency power to commute the death sentence of the Nirbhaya four to life imprisonment.

As a first step, this will require the filing of fresh mercy petitions to the President for the convicts whose mercy petitions have already been rejected, which they have the right to do on new grounds. After all, it is a matter of life and death.

Deontological non-violence, central to the national freedom movement led by Gandhiji, was never adopted after independence by the Indian State led by his own most devoted followers.

As a second step, this will require more diligent and deliberate consideration of the new mercy petitions. The unseemly haste with which the mercy petitions of the four Nirbhaya case convicts are being rejected is a travesty of justice. President Kovind took 272 days to consider and reject his first mercy petition after assuming office. In contrast, two petitions of Nirbhaya convicts were rejected within one day and a third was rejected within three days (status as of February 10, 2020). Nor have reasons for the rejection been made public.  This haste robs the applicants of their Constitutional right to seek Executive clemency for commutation of their death sentence. The Supreme Court's contention that once all required material is presented to the President, we should assume that he has applied his mind even within this impossible time frame simply because he is a high official is unconvincing in a democracy. Every official must be demonstrably accountable for the quality of his decisions. 

Third, we need a new understanding of the unique role of clemency power in the Indian context. Clemency literally means a "disposition to be merciful and compassionate, in particular, to moderate the severity of punishment" awarded through the justice system. Clemency can never be used to enhance punishment. Clemency responds to the human struggle over "how to reconcile the law's call to justice with the heart's call to mercy" says Carol Steiker in her review of Prof. Linda Meyer's pathbreaking 2010 study The Justice of Mercy. 

Powers of clemency

The clemency power of the Executive, separate and outside the judicial system and not an appeal against it, reflects the recognition of the fact that the judicial process does not yet have the analytical tools to measure, calibrate and apply the most important values that make us human and constitute our Republic — compassion, kindness, and non-violence.

If not law, democracy demands that the Government should also clarify the legal justification for fast-tracking the killing of the Nirbhaya four.

It is not a power to excuse or condone the wrongfulness of the criminal act. It is simply a power to temper punishment with the highest values of humanity.  Because non-violence is the moral mandate accepted and observed by the people of India, clemency power in the Indian context is a sacred trust to uphold and apply the principle of non-violence to criminal punishment by reducing as much as possible the violence in the punishment. Clemency power should, therefore, be seen as the "non-violence clause" of the Indian Constitution.

If not law, democracy demands that the Government should also clarify the legal justification for fast-tracking the killing of the Nirbhaya four ahead of any of the other over 400 convicts now on India's death row.  How is the right of the 400 people on death row to equal protection of the law under Article 14 being protected?  Media frenzy is an unruly horse and an illegal basis on which to decide who dies first.

 It is the solemn responsibility of the President of India and the judiciary to insulate legal decision-making in this high profile case from lynch mobs. Joseph Story (judge of the United States Supreme Court for 33 years) in his 1833 Commentaries on the Constitution of the United States sets a very important Constitutional standard for the quality of the exercise of clemency power: it has to be "sufficiently exerted" by the Executive so that "public feeling" will not "assign ultimate doom to persons". 

Justice Story presciently said, "The danger is not that in republics the victims of the law will too often escape punishment by a pardon; but that the power will not be sufficiently exerted in cases, where public feeling accompanies the prosecution and assigns the ultimate doom to persons…"

(Prof. G Mohan Gopal is a former Director of the National Judicial Academy, Bhopal and National Law School of India University., Bengaluru)