PUBLISHED: 20:47 GMT, 21 April 2013

The quality of mercy varies from person to situation, but it is for all: the preferred rich and the unpreferred poor.

Dispensing mercy is a compassionate art with which India is out of touch. From 2001-2011, the death penalty was finally awarded to 1,455 persons. The higher courts commuted 4,321 death sentences into life imprisonment.

Delhi saw the judiciary commuting 99 per cent of the death penalties (2,462 cases). The commutation in other states was less dramatic – J-K (18), UP (458), MP (62), Bihar (343) Maharashtra (175), Jharkhand (300), Chhattisgarh (24), Assam (97), Odisha (68), Punjab (24), Rajasthan (33), Kerala (23), Tamil Nadu (24), Uttarakhand (46).

A flawed notion of mercy

The story is uneven, the data incomplete. But, it shows that the “rarest of rare” formula is not fully understood by the sessions or even higher court judges.

It is so easy to interpret the ‘rarest of rarest’ as including incessant killings, brutal deaths, torture and gender violation. These have become inflexible categories beyond interpretation.

As soon as trial judges find that a case falls in these broad categories, they award the death penalty. In at least half the cases, the death sentence is commuted by the High Courts. Then the issues get narrower as we go to the Supreme Court, which has a confused record veering towards the death penalty in terrorist and gruesome cases.

By the time the matter reaches the President, the decision becomes political and taints mercy.


A huge amount of time elapses between the criminal ‘event’ and the death penalty. In the Bombay blasts, the interval was two decades. In the Parliament case, more than a decade. On 6 April 2013, the CBI Court awarded the death penalty to three policemen 31 years after the fake encounter case in the Gonda district of U.P.

What happened during these years? How do you judge culpability three decades old? Or apply the ‘rarest of rare’ formula?

This is an important flaw in the ‘rarest of rare’ formula. When do you apply it? In relation to the criminal event? The trial court’s decision? The High Court‘s decision? The Supreme Court’s decision? At judicial levels, the decision is ‘event-based’ – with very little allowance for repentance in sentencing.

Beyond the judicial level, the same “event based” formula is applied in pardon cases with a political twist. Communal voices ask for death – wondering whether Caesar will put his thumb up or down. The crowd or the populace roars for death. It is a brave Caesar or President to turn down the crowd or the politics of the aftermath. The discourse on mercy is eclipsed.

Our system is no better. But to return to the question of when we apply the ‘rarest of rare’ formula. Is it essentially “criminal event” based? But does nothing change over time? Remember Heraclitus saying: “You cannot cross the same river twice.” And Cratylus adding: “You cannot even cross it once.”

Ten years is a long time. Twenty or thirty years, even more. Will we always judge the crime and never the person? Or a person as an adjunct to the crime? Must all Pakistani Kashmiri militants die? They will not retract from their beliefs. But over time, they change – some repent, some cannot say that they do.

The mercy of the presidential office has become irrelevant. The Supreme Court’s reprieve from President Pranab Mukherjee’s refusal to pardon 8 persons was brief. At this post-pardon stage, the Supreme Court limits its inquiry to whether the President acted malafide.

Significantly, Pranab’s predecessors forced the Home Minister to think. President Patil rejected 3 pleas in 5 years including in the Bhullar car bomb case of 1993, Rajiv’s killers, and a beheading incident. Kalam rejected Dhananjoy’s pleas from Calcutta. Narayan rejected no mercy pleas. The present presidential dispensation refusing pardon for death row is inexplicable. The system is all wrong, its understanding of mercy and just punishment too limited. Mercy is about the person not just the event.

Sanjay Dutt

Granted more time: Actor Sanjay Dutt during shooting of the film 'Policegiri' at a studio in Mumbai Granted more time: Actor Sanjay Dutt during shooting of the film ‘Policegiri’ at a studio in Mumbai

The bottom line is: we have a system of punishment but not mercy, of legicide by the state, but little or no reprieve. There is parole for those serving sentences. Only silence for the dead.

The latest twist in the Sanjay Dutt case, giving him time for four weeks, must make us think. The good part is that before imprisonment everyone has unfinished business. More important than Sanjay, a woman who has to make provision for her children, or for the old. A sick person whose needs hospital treatment. In this list, the businessman or actor who has to fulfill a contract must come lower down.

But what the Sanjay precedent suggests is the need for a new penology so that everyone is allowed a furlough to complete some part of their unfinished obligations before their prison sentence. The bad part of the Sanjay decision was that it gave the impression of favouring the rich and famous.


We are a troubled and violent society. Awarding death sentences adds to the violence without deterrent effect. The proof is that thousands of homicides are un-reported. Violence is unabated. If India decides that punishment deserves that a tooth must be broken for a tooth, the incidence of death penalty will increase to no avail.

Our retributive system of punishment looks at the crime and extracts revenge: usko zinda matt chodho (don’t let him live). Then, the state assumes a right to kill, rightly denied to its citizens. Our system lacks mercy and, therefore, justice.

The writer is a Supreme Court lawyer

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