Under Article 72 of the Constitution of India, the President’s power to grant mercy comes into play only after the judicial system has confirmed the death sentence. Therefore, the confirmation of the death sentence by the highest court is a condition precedent to the grant of mercy. Judicial confirmation of the death sentence does not put the convict beyond the pale or disqualifies him from mercy; in fact it renders him eligible for mercy. Arguments that Kasab deserved no mercy once the Supreme Court confirmed his death sentence are misconceived.
It is only the rarest of rare crimes that shock the collective conscience of society and are truly unpardonable that are given the death sentence. In our constitutional scheme, it is therefore only persons committing such crimes that are eligible for mercy and pardon. If they are to be excluded from the ambit of mercy by the mere fact of having committed truly unpardonable crimes, the President’s power of mercy has no meaning. Paradoxically, the very fact that Kasab has indeed committed an unpardonable crime is what renders him eligible for mercy.
Mercy and pardon are acts of grace. As such they are unrelated to recompense, merits and just deserts. Giving someone what he deserves or is entitled to is not mercy, it is recompense involving no measure of grace. If the powers of pardon and mercy are to be worthy of the name, they must be able to pardon the unpardonable and show mercy to those who are otherwise undeserving of mercy for having behaved mercilessly themselves.
The jusitification for mercy has its roots not in merit, but in need. We don’t deserve mercy, we need it. I think all of us—the best and the worst—are in need of mercy, and it is only by showing mercy that, morally, we ourselves become entitled to receiving it. Bereft of mercy, our society would be impoverished and inhuman, for mercy is quintessentially a human quality, not found elsewhere in the natural world. In classical thought and in many faiths, mercy is the manifestation of divinity within us, showing that we are made in the image of a god who is the ultimate bestower of mercy. As for deserving, give each man his deserts and who shall escape a whipping? Mercy is not dependent on just deserts. Justice and mercy operate in mutually exclusive realms. It is only when justice demands that punishment be inflicted that mercy comes into play. Mercy tempers justice, makes it less exacting, more humane. Excluding a fellow human being from entitlement to mercy has nothing to recommend it except a very base blood lust that we encourage at our peril. If we have to become a more humane and compassionate society, and leave a better, and less blood-thirsty world behind for our children, we have to curb our instinct for retribution.
Executing Kasab in the name of the Indian people will only feed a base instinct for retribution that will make our society more blood-thirsty, vengeful and violent. It will not contribute to our safety or well-being in any way. On the other hand, keeping Kasab in jail for the rest of his life and treating him like a human being allows for the possibility of him regaining his humanity, repenting his crime and atoning for the harm he has caused.
That would indeed be a big victory in our battle against terrorism. It would also show our humanity. Because the execution of an individual is irreversible, the principle that the more extreme a penalty, the less it must be amenable to an individual’s discretion, is especially relevant.
The Supreme Court has in a series of cases attempted to define what constitutes “rarest of rare”, but this too is capable of producing anomalous results. In the year 2002, in the case of Devinder Pal Singh versus State (NCT) of Delhi, a three judge bench of the Supreme Court of India, pronounced an extraordinary verdict — two of the judges found the accused guilty and confirmed the sentence of death imposed by the trial court while the third judge acquitted the accused. Despite this profound difference of opinion between the judges, the majority view was upheld in a review petition. Devinder Pal Singh is still on death row. These vagaries are further amplified when one examines the manner in which Presidential pardons are allowed or denied. The Presidential pardon is often determined by the political dispensation and societal mood, at a given point of time.
Questions of life and death, especially state sanctioned execution, are too momentous to be left to individual prejudice, political affiliations or personal predilections.
Yug Mohit Chaudhry is a criminal lawyer, practising in Mumbai and has been in the forefront of the abolition of the death sentence movement.