Why one person alone cannot (and must not) confirm a death penalty, even if it's the President

In this tragedy the “original offence” comprises Act I; the convicting and sentencing form Act II. This is followed by Act III in which a petition is filed for mercy, a word imbued with grace, or clemency, an act imbued with authority. But more exactly, the petition is for the commutation of the death sentence to one of life sentence, or a lifetime in prison.

In India, after the state’s judicial arm has done its work, the condemned person invariably petitions the head of state for commutation. The state’s constitutional fingers then turn the pages of the case to see if at the intersections of law and justice, crime and society, intention and action, there is something, anything at all, to entitle the sentenced one release from the noose.

The post-court study of a death penalty case in Act III of the tragedy is finally done by the president, acting under the advice of the government.

The Constitution of India has made it clear, and the courts have confirmed the position, that the president cannot overrule governmental advice. This means, effectively, that when the government’s advice is received by the president on any matter, he may study it with care, and at whatever speed he likes, even expressing doubt or disagreement with it, seeking clarifications should he wish to, but, essentially, he has to act in accordance with it.

This “binding” provision of Article 74 of the Constitution obligates him in death penalty cases to go by the advice of the ministries concerned – Law, Justice, Home, with the prime minister coming into the picture with such degrees of “mind application” as he may wish to bestow on it.

This arrangement is, of course, based on the British model, where the Crown but lends its name to the government’s decisions. Does this make the president a mere rubber stamp? e answer is, of course, yes, but the truth is larger than answers. So what, one might ask, in Pontius Pilate style, is the truth?

Simply this: rubber stamps do not necessarily come with rubber handholds. They can be made of firm wood and, sometimes, even steel. And they can choose to use their own, not the “state issued” inking pad of unvarying magenta.

A president can accept without demur the government’s advice on whether the petitioner, namely, the person sentenced to death and now appealing for mercy, should hang or have his sentence commuted to life imprisonment. Or, the president can, if he so wishes to, ask questions, make comments and seek clarifications before he confirms the death penalty awarded by the courts and concurred with by the government, or dilutes it to life imprisonment.

When he asks sound questions that go against the government’s advice, it is perfectly possible that he can occasion some rethinking in the government and actually change the course of the case. What does this really amount to?

Just this, that the advice of the government on a mercy petition is, at best, an opinion, even a strong opinion. A recommendation, even a strongly-worded one, is a decision in the making, even a foregone decision in the making, but is not yet the final decision. And between the firm advice and the final decision can fall the shadow of another opinion, a query, a suggestion from the president’s mind which reverses the flow and causes the advice given to be looked at again, in the light of the “presidential point”.

This is not suggested to make that “point” an extra tip; it is to suggest that on a matter as grave as the taking of a person’s life, a sequence of second and third thoughts is not only valid but ineluctable. Some presidents have not troubled the government with second thoughts, others have.

To give evaluations and revaluations a chance to excavate the ingredients of a death penalty case is not an act of procrastination but of responsibility.

It is both wise and humble. To not do so is unwise and arrogant. It is also callous.

Beyond the quadrangles of law, mercy can act and the sentence of death can get commuted to one of lifelong imprisonment. The order of the president in a mercy petition is a post-judicial loosening or tightening of the noose, leading to a commutation of the death sentence to life imprisonment or to hanging. But can that discretion be vested in any individual, with all his or her human variabilities, predispositions and fallibilities?

If the option were between punishments that are reparable, retractable, reversible, the position would be different. But when the option is as irreparable, irremediable, irreversible as death, can any human agency in a democratic republic be trusted with it? Should a petition for clemency be left to the clement heart or the inclement mind of one person, even if that person be the President of the Republic?

This is “the truth”, not in the shape of an answer but in the form of a counter-question.

When the death penalty is confirmed, what had been called “judicial murder” becomes a constitutional and administrative murder. Albert Camus, a great death penalty abolitionist, has, in his masterly essay Reflections on the Guillotine (1957), in fact called it just that.

When the hangman finally pulls the rope or opens the hatch, he does so in the name of the law and of the larger scheme of life as our Constitution has drawn it.

But there is more to the death penalty than a “judicial or an administrative murder”. And that has to do with a hinterland of views, predilections and considerations that find their way into what can be called the sociology and politics of capital crime.

Politics do not ordinarily enter death penalty proceedings up front.

And in the ordinary sense of the word, not at all. But in India, as elsewhere, the head of government, namely the prime minister, is by definition a political being. The head of state, namely the president, be he or she from a political or a non- political background, holding elective office, is also ipso facto, while in that office, a political entity.

It only follows that the advising prime minister and the advised president cannot overlook the sociology of politics and the psychology of public opinion that broods over a death penalty case. The community of the one sentenced, the background of the one killed, the social interest in the case, the political implication of hanging or not hanging the person – all these factors are unconnected with the law but they are vitally related to a political society. And these get to be weighed into the death penalty consideration.

The courts cannot look at considerations bar the legal. The prime minister and the president cannot afford not to. The courts hold the scales of justice to weigh crime against punishment. The prime minister and the president hold the balance of power to weigh sentence against consequence.

In its last and most defining and irreversible stage, a death penalty case gets to be scrutinised for its wider, non-judicial ramifications, by politically wired brains.

The death sentence when implemented is not a coin made of law’s pure gold but an alloy, in fact, a coarse alloy of many ores, of high, medium and low grade, that have passed through the smelteries of reason, emotion, pride, prejudice, a state’s hubris, a society’s moods that swing between pity for the victim and rage at the culprit in an unspooling of feelings that are as old as that of the Plebeians who ran amok in 44 BCE in Rome following Caesar’s assassination and killed Cinna the poet mistaking him for Cinna the assassin, the mob that bayed for Christ’s blood in Judea around 29 CE and all those “popular” upsurges down the centuries right down to our times demanding the death of men believed to have done harm to society and nation.

And so the death penalty is also, somewhere in its DNA, a political murder.

This is said not to debase lawfully passed sentences of death, but only to describe the syndrome in the fullness of its construction.

A sharply magnifying political lens is now getting used for the politically charged crime of crimes – terrorism. To the traditional formulations of “war against the state” and “treason” are now added contemporary high-tech and high-strategy forms of the old monstrosity of terrorism, sometimes accompanied by deliberate mass murders, sometimes by collateral homicide and by assassinations.

The old familiar murder caused by passion, greed or perversity is now the poor cousin of the group murders of innocent men, women and children at the hands of terrorists speaking for a cause or a group, a movement, an affinity or an aversion, a hate. The nightmare of society and of governments, this is taking place all over the world often at the hands of non-nationals, unleashing sentiments of patriotic rage, nationalist revenge and turf pride. It demands retribution.

Retribution is a tangible act for an intangible relief. It can be wrenched tangibly from persons or institutions but its end in terms of relief is the intangible compensation for tangible losses. That sense of relief, of “justice has been done”, is a property of the undemarcated dominion of the human heart.

The concepts and the emotions of attachment, deprivation and compensation have been interiorised in penologies that affirm retribution as valid and those that discount and discourage it.

A question which in our terrorism-scourged-times demands attention is: If an aggrieved section of humanity can turn aggressive and maul another section of humanity, cannot the receiving side be entitled to the relief of retribution?

In other words, are the USA, France, Russia, China, India, Pakistan and other nations that have been the targets of terror attacks not entitled or justified as collectivities of affected people in seeking retribution through retaliation?

So the journey of the death penalty in a terrorism case also becomes, somewhere along its meandering course to the gallows, a matter of collective public concern. A terrorist when executed quenches a public thirst and his hanging, though conducted behind prison walls, takes on the aspect of an old-style public execution.

The executions in India of Ajmal Kasab (21 November 2012, Pune), Afzal Guru (9 February 2013, Delhi) and Yakub Memon (30 July 2015, Nagpur) could not be watched by the public but they were as closely followed in the media as an India-Pakistan cricket match would be.

“The death penalty is a macabre folly that swings between tragedy and idiocy. Its continuance is not just unimaginably evil, but sovereignly stupid; its termination will not just be nobly clement but wholly and supremely and incontestably intelligent.”

Excerpted with permission from Abolishing The Death Penalty: Why India Should Say No To Capital Punishment, Gopalkrishna Gandhi, Aleph Book Company.