RESPONSE TO 'MERCY AND CAPRICE' UNDER THE INDIAN CONSTITUTIONS BY ADAM PERRY
Under Criminal Jurisprudence, mercy plays a vital role in giving justice to an accused who has been convicted by a Court of law. Mercy, as we understand it, is a very complex term and is in itself a puzzle. There is a dilemma across several jurisdictions wherein the Judicial authorities are still in two minds on whether mercy is morally good and whether it acts against the notions of justice. There are two schools of thought which define mercy in their own way. As we proceed further with this review, we will understand the arguments put forth by both schools of thought. According to Jeffrie Murphy, “mercy is best viewed as a free gift; an act of grace, love, or compassion that is beyond the claims of right, duty, and obligation.” (Murphy, 1986 https://doi.org/10.1017/cbo9780511625121.007).Through the years, many criminal justice systems around the world like the US, UK, and India have raised the question of whether the judiciary can review the pardoning powers given to the executive.
Comparing the history of Pardon powers in the USA, UK, and India
The Criminal Justice System of the US has rarely noted a judicial review of a pardoning decision and has been in a state of controversy on whether mercy complies with the notions of justice. It is important to note that in United States v WilsonMarshall CJ opined that a pardon is an act of grace, thereby strengthening the argument put forth by Jeffrie Murphy. However, the conflict in idea emerged when Justice Holmes disagreed and said that pardon is not a private act of grace, rather a part of the Constitution and thus reviewable. Therefore, it is evident that the ideology prevalent in American Law is somewhat controversial and not explicit. In contrast, in the UK, a plea of mercy is taken by a convict before the executive, and if considered favourably by the executive, the said decision would be final and is not open to any challenge before any court for a judicial review. However, India is the only country where the plea of judicial review is allowed to be examined by the court on the decisions given by the executive on the plea of mercy. One of the landmark judgments on the said issue was of Maru ram v Union of India . After that, a host of cases have been filed in which judges have always believed that the judicial review is permissible even if the executive grants the plea of mercy. When we review the criminal justice followed by the three significant jurisdictions mentioned herein above, we suggest that the US jurisdictions, like in India, are amenable for a judicial review of the decisions of mercy given by the executive. However, the UK jurisdiction is very stringent and does not allow the courts to interfere in the mercy decisions ordered by the executive. Adam Perry, who compared the Indian Constitution with the other jurisdictions on the question of mercy, questioned as to whether the Supreme Court has undermined the Rule of Law and tried to frustrate the powers of the executive in granting clemency to the convicts.
Main question raised by Adam Perry and the concept of Mercy
The Indian Constitution empowers the President of India, who is the head of the executive of the Union of India and the Governor of a State, with a power to pardon/remission/reprieve a convict convicted under the rule of law. The key question that Adam Perry has raised in his article is about whether the power bestowed upon the executive under the Indian Constitution is amenable for interference by Judiciary under judicial review on the basis that the justification given for pardon is arbitrary and unjust. In the article, Adam Perry asserts that the pardon powers granted by the Constitution are extraordinary. We believe that the reason why Adam Perry chose to call pardon powers as extraordinary is that it includes humanitarian connotations. He asserts the importance of the executive in ensuring justice and explains the meaning of ‘justice by the executive’ by creating an understanding of the term ‘mercy’. It is through this term that Perry answers the key question in his article. This term is not often thought about in case law, however, it is a subject of philosophy and legal scholarship. In the article, Perry states that there exist two broad concepts of mercy. And both concepts involve imposing a lesser punishment than is permitted.
The two concepts of mercy as defined by Adam Perry
The first concept of mercy defined by Adam Perry is ‘positive mercy’. According to him, there might be punishments in law that are not always just and may be too harsh. The concept of positive mercy is to treat someone in a just manner even though the law might call for a harsher punishment. Perry points out that even if all laws were just, there would still be a role for positive mercy. The reasoning given for this is that laws are rules and rules are generalizations. Due to the law being generalizations indirectly, it fails to account for variations in specific cases. Therefore, in some cases, a just law will call for a lenient punishment and a harsh one in another. Positive mercy is applicable in the latter case. The important aspect to note while talking about positive mercy is that “one has a duty not to impose unjust and excessive punishments, so one has a duty to show positive mercy”. (Perry, 2017 https://doi.org/10.1080/24730580.2017.1314173). This form of duty is not an obligation or a legal duty, but a moral duty. Therefore, it is morally good to show positive mercy and morally wrong not to show positive mercy. Further, having the duty of positive mercy is not the sole thing one has to perform. And this form of duty is never overridden by other duties.
The other concept of mercy is called ‘negative mercy’. This form of mercy is understood as imposing a lesser punishment that justice allows. Negative mercy saves a person from the harsh treatment under the law while disregarding the features of that specific case relevant to justice. This form of mercy arises out of a feeling of compassion or sympathy for the offender instead of being motivated by a concern for justice. Perry argues that it is morally good to show negative mercy even though it goes beyond justice. He further argues that there is no moral duty to show negative mercy. Perry goes on to assert that while it is morally good to show negative mercy it is not morally wrong to not show it. While delving into the concept of negative mercy, Perry uses the keyword ‘supererogatory’. By stating that negative mercy is supererogatory, he means that negative mercy is morally optional. This optional nature of negative mercy makes the concept somewhat inconsistent. It is argued that if one acts in a different manner in two situations that are the same in all relevant aspects, then they are subjected to criticism on rational and moral grounds. This inconsistency has occurred due to the person failing to treat both the cases alike. However, it is a core aspect of negative mercy that if one shows this form of mercy in a case then it is not a moral compulsion for them to show mercy in other like cases. The main difference between the two forms of mercy is that positive mercy is continuous with justice, is a moral duty, and does not need to be motivated by the feeling of compassion. On the other hand, negative mercy is a departure from justice, is morally optional, and is motivated by the feeling of compassion. Another difference between the two is that positive mercy is supposed to be shown consistently in like cases, whereas in negative mercy there is no need for consistency between like cases. The similarity between the two concepts of mercy is that they moderate harsh treatment to offenders and are a response to imperfection in law.
Questioning the type of mercy authorised by the Indian Constitution
Perry after explaining the concepts of mercy raises an important question. This question inquires whether the Constitution authorises positive or negative mercy. The Articles in the Constitution do not say anything, and case laws mainly point towards positive mercy but not exclusively. To answer this question, the author considers the role of caprice in each form of mercy while assuming that the Constitution authorises either positive or negative mercy at one time. When the Constitution authorises positive mercy, Perry states that logically the power to show positive mercy should go to the judiciary, as to show positive mercy is to do justice, and the judiciary has the expertise, resources, and procedures for the purpose of achieving justice. An understanding of positive mercy would dictate that acts of positive mercy open a gap between the law as stated and the law as applied as it involves a departure from a legal standard. If the power to show positive mercy was given to the judiciary, then judges would refuse to apply unjust criminal laws which leads to the rule of law being severely undermined. As stated earlier, consistency is a key element of positive mercy which means that if the judiciary were to show positive mercy in one case, then it would have to do the same in all like cases. This consistency aspect would lead to coordination issues among the judiciary due to its size. Judges throughout the judiciary would not be able to coordinate and apply positive mercy in a consistent manner due to a lack of information and the volume of judicial decisions. To solve this problem of coordination, there needs to be a small number of people who have the power to show positive mercy. And the Constitution has done exactly this by giving this power to a small number of people in the executive. It is difficult for the judiciary to collectively respond to the systemic risks of showing positive mercy and invalidating refusals to show positive mercy. Further, the power given to the executive by the Constitution to set aside legal standards helps safeguard the rule of law. According to Perry, judicial review would disperse this power which ironically leads to the rule of law being undermined. It is argued by the author that this danger becomes acute when judges attempt to eliminate capriciousness with the usage of judicial review. Perry states that “The law is frequently unjust, sometimes unavoidably so. If correcting one of the law’s injustices meant having to correct every equal or greater injustice, then the law would cease to rule. Thus, a degree of capriciousness is the price we pay for balancing two things we value: justice and the rule of law.” (Perry, 2017 https://doi.org/10.1080/24730580.2017.1314173).
On the other hand, when the Constitution authorises negative mercy two assumptions have to be made, the state can show compassion and it can act in a supererogatory way. If these assumptions are not made, then negative mercy cannot exist. The author argues that a degree of capriciousness is the cost of showing negative mercy. Perry explains the role of caprice in negative mercy quite well by using a hypothetical. In this hypothetical, two murderers request pardons from the executive with the facts of their cases being alike in all relevant respects. Moved by compassion, the executive grants the pardon to one murderer and rejects the other. It can be said that this treatment of the murderer in the second is not just. A judicial review would most likely succeed in favour of the murderer in the second case. However, a judicial review interferes with the power of the executive to show negative mercy. As mentioned before, negative mercy is supererogatory thereby making it morally optional. Further, inconsistency between multiple alike cases is an aspect of negative mercy. If due to judicial reviews, there is a need for the executive to be consistent then the executive has to either deny pardon or allow it in both cases. If for the sake of consistency, there are constraints put on the executive, then the mercy does not remain optional in nature. Requirements or constraints make the performance of a supererogatory act impossible, contradicting a core feature of negative mercy. Negative mercy arises out of a feeling of compassion, so in the instance that the executive reaches its decisions under the pardon powers it consistently removes the feeling of compassion.
Cross referencing Adam Perry’s understanding of the term ‘Mercy’ with other legal scholars
There are broadly two schools of thought when it comes to the meaning of mercy. One school of thought has an optimistic thinking and view mercy as something positive. This school of thought includes legal scholars like Adam Perry and Jeffrie Murphy who use affirmative phrases like ‘act of grace’, ‘compassion’, ‘beyond one’s duty’ to define mercy. The other school of thought has more of a pessimistic view of mercy. This school of thought includes legal scholars like Dan Markel and James Whitman. According to Markel, “mercy refers primarily to leniency afforded to criminal offenders on the basis of characteristics that evoke compassion or sympathy but that are morally unrelated to the offender's competence and ability to choose to engage in criminal conduct.” (Markel, 2004 https://doi.org/10.2139/ssrn.392880). However, scholars from this school of thought view mercy to encompass leniency that is motivated by bias, corruption, caprice, and venal self-interest. Markel argues that the mercy which is based on compassion is ‘popular mercy’ since it is the widely recognised meaning of mercy. Whereas mercy based on corruption, bias, and self-interest is the ‘unpopular mercy’ since a relatively lower number of scholars belong to this school of thought.
Analysing and questioning Adam Perry’s reasoning
Upon reviewing the article of Adam Perry on the question of mercy, it is evident to conclude that rule of law as laid down in our Constitution is an important concept that has to be kept in mind while reading both Perry’s arguments and its cross as opined by scholars like Dan Markel and James Whitman. The basic structure of the Indian Constitution is based on Rule of law. In light of the rule of law principle, the Constitution through its Articles 72/161 has given the power to the executive to give pardon/remission/reprieve wherever they see it morally correct, and as Perry has pointed out that Caprice is nothing more than the price paid to grant mercy to the convicts. Hence, it is important to understand that when a convict who has exhausted all his legal remedies provided under law and his/her conviction is confirmed by the highest court, the Constitution provides the convict one final opportunity to prefer an appeal to the executives to grant him mercy i.e., to show an act of grace towards him. If the judiciary interferes in the decision of the executive and reviews the executive’s power, then it defeats the purpose of the power to show mercy as given in the Constitution and thereby defeating the concept of separation of power which is one of the basic foundations on which the Constitution has been formed. Therefore, the question that we raise is whether it is judicious to review the decision-making power of the executive, and even if it is permissible then to what extent. This question arises on the fact that the executive is the highest authority under whom both the government as well as the judiciary function. The framers of the Constitution might have provided the power of pardon to the executive for the reason that the decision of the courts is based on law and evidence whereas the power to pardon/remission/reprieve is based on the conduct of the convict. Thus, we can say that mercy is a necessary concept in any criminal justice system because it keeps a balance and eliminates the risk of undermining the rule of law which is one of the important aims of the Constitution.
However, we do not agree with Perry’s argument that pardons arising out of malice, bias, and arbitrary rule are not true in practice. Unpopular mercy as quoted by Dan Markel is very much true in practice in India. A few cases can be cited wherein it was a fact that the pardon was a result of mala fide intention and suffered from arbitrariness. Secondly, we also do not agree with the alternative given by Perry that the process of deciding whom to pardon should be made more open and public. If such a thing would exist, then there will be differences in opinion, and ultimately mercy as a concept would fail. Rather we would suggest that in cases where it is evident that some kind of arbitrariness, malice, or bias is present, then a Jury could be formed which will be the voice of the general public. But we are still of the view that capricious pardons should in no way be objectionable and reviewable by courts. This alternative is more reasonable than judicial review for the reason that a Jury will look at the pardon decision from a moral and public lens. Whereas in judicial review, the judiciary once again will look at the pardon decision from a legal and rigid point of view.
1. Perry, Adam. “Mercy and Caprice under the Indian Constitution.” Indian Law Review, vol. 1, no. 1, 2017, pp. 56–68.
2. Murphy, Jeffrie G. “Mercy and Legal Justice.” Forgiveness and Mercy, 1988, pp. 162–186.
3. Markel, Dan. “Against mercy.” Minnesota Law Review, 88, 2004, pp. 1421–1478.
4. Whitman, James Q. “Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe.” Oxford University Press, 2003.
5. Endicott, Timothy AO. “Arbitrariness.” Canadian Journal of Law and Jurisprudence, 27, 2014, pp. 49-71.
6. Moore, Kathleen D. “Pardons: Justice, Mercy, and the Public Interest.” Columbia Law Review, 89, 1989, pp. 1972.
7. Rainbolt, George. “Mercy: In Defense of Caprice.” Nous 31, 1997, pp. 226-241.  (1883) 150 U.S. 2  (1981) 1 SCC 107  Epuru Sudhakar and Anor. v Government of Andhra Pradesh and Ors (2006) 8 SCC 161.
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About the authors: Siddharth is a law student at Jindal Global Law School. He has previously worked with the Vidhi Centre for Legal Policy, researching legal validity of government schemes. He has interests in legal research.
Aniruddh is a third-year law student at Jindal Global Law School. He is a DeFi ( Decentralised Finance) Enthusiast who has thoroughly researched and developed a strong basis of understanding in DeFi. Aniruddh also researches of various questions surrounding law and society.