Mercy and Caprice under the Indian Constitution
Indian Law Review, Forthcoming
20 Pages Posted: 17 Feb 2017 Last revised: 14 Oct 2021
Date Written: February 16, 2017
The Indian Constitution gives the executive the power to pardon offenders. The Supreme Court of India has repeatedly held that the executive must not grant or refuse pardons capriciously or arbitrarily. I raise two worries about this line of authority. The executive has its pardon powers in part so that it can show mercy. In one sense, mercy is about doing justice despite what the law requires. Mercy in this sense is a threat to the rule of law, and caprice is the price of containing that threat. In another sense, mercy is about showing compassion despite what justice requires. Mercy in this sense is an act of grace, and caprice is the price of it being possible at all. By seeking to eliminate caprice, the Court has risked undermining the rule of law, and frustrating one of the aims of the Constitution.
Keywords: Pardon, Clemency, Mercy, India, Judicial Review, Rule of Law, Arbitrariness
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