📰 Lines and roles: On Governors
The time may have come for clarifying the role and functions of Governors
•Signs of a confrontation between Raj Bhavan and the elected government in a State are not infrequent in the country. The onus often appears to be on the Chief Ministers to avert a constitutional crisis, as evidenced by Pinarayi Vijayan trying to buy peace with a miffed Governor, Arif Mohammed Khan, rather than pursue a confrontational course, over several issues in recent times. One way of seeing these developments is to attribute them to the appointment of those who have been politically active in the recent past as Governors and the partisan role they play as agents of the Centre. However, the problems may have to do with the way they understand their own powers. Constrained by the ‘aid and advice’ clause in their routine functioning, some Governors seem to be using the discretionary space available to them to keep regimes on tenterhooks. A Constitution Bench of the Supreme Court laid down in 1974 that the President and Governor shall “exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations” — “situations” also illustratively listed. Yet, there is the extraordinary situation of some Governors not acting upon requests to grant clemency or assent to Bills; and, in one instance in Tamil Nadu, a reluctance to reserve for the President’s consideration a Bill that expressly requires Presidential assent because of obvious conflict with a central law.
•Much of the conflict arises due to the Constitution itself. It fixes no time-frame for the Governors to act, and contains, in Article 163, an unusual power to choose what is in their discretion and what is not, with the courts being barred from inquiring into whether any advice and, if so, what advice was given. The Sarkaria Commission on Centre-State relations recommended no change in this scheme, but it is time it is revisited. While as the ‘lynchpin’ of the constitutional apparatus, Governors indeed have a duty to defend the Constitution and encourage or caution the elected regime, the impression that Governors are not obliged to heed Cabinet advice persists in some areas. At a time when regional political forces are actively seeking to be heard by the Centre, it may be time that the provisions relating to the Governor’s role are amended. Identifying areas of discretion, fixing a time-frame for them to act, and making it explicit that they are obliged to go by Cabinet advice on dealing with Bills can be considered. Regarding Bills, it is clear that the Constituent Assembly passed the provision for Governors to return Bills for reconsideration only on the express assurance that they have no discretion at all. In addition, as suggested by the M.M. Punchhi Commission, ending the practice of burdening Governors with the office of Chancellor in universities should also be considered.
📰 A negation of the individual and a collective moral decay
Handing down the death sentence in a cursory manner and the ensuing public silence are cause for concern
•Last week, a little over 13 years after the blasts in 2008 (in July) in Ahmedabad, Gujarat, the designated court to conduct a speedy trial decided the fate of 78 of the accused people. The Sessions Court building turned into a fortress on the day of the verdict. Unlike other days, people were frisked before they were allowed on the court premises. But in this seeming silence and secrecy, on a video-conference link, 49 people were convicted. When those adjudged guilty were asked if they had anything to say, most spoke with fondness about their family members; many recounted their clean jail records and educational qualifications; some pleaded innocence. Many broke down and begged for mercy.
•Within a week, the court sentenced 38 of 49 people to death. In a judgment that was 7,015 pages long, written entirely in Gujarati, the court perfunctorily read out the names of convicts, almost like a school roll call — to “...tie a noose around the neck and hang the convict until he is dead....” — making it one of the most jarring cases in the history of independent India of the use of discretion to sentence citizens to death.
•According to a report by Project 39A at the National Law University, Delhi, a total of 488 prisoners in India (as of 2021) were on death row, which is an increase of nearly 21% from 2020. In one fell swoop, the unprecedented verdict of the court in Ahmedabad has now added a near 10% increase to this number; it is also a reflection of the growing trend of trial courts to cursorily hand down the death sentence.
Degree of retributive justice
•Debates on the death sentence often focus on its efficacy or constitutionality. But even the liberal critique sidesteps the central issue: the death sentence grants the state the monopoly of violence. This monopoly is justified by claiming that such a step prevents crime or that it is a measure of long-due justice. But at its core, death as a punishment for the ‘rarest of rare’ crimes is the highest measure of retributive justice in criminal law, based entirely on discretion.
•Fundamentally, ‘rarest of rare’ is a standard that allows a court of law to use public sentiment as a judicially reliable standard in handing out the death sentence. India’s carceral criminal jurisprudence requires a court to calculate proportionality between crime and punishment. But here is a sentence that goes beyond the confines of these calculations to deprive a person of their life — committing an act whose central value itself is immeasurable.
•Justice P.N. Bhagwati pointed to this in his dissent from the majority Supreme Court view, in Bachan Singh vs State of Punjab (1980). In a remark that discretion is a poor substitute for principle, he held that any standard setting to explain when an institution can kill someone defeats the moral imperative to do no harm. Thus, instead of lifting the moral atmosphere of society, the ‘rarest of rare’ standard gives an institution the power to bracket people as those who deserve to live imprisoned and those who deserve to be institutionally killed. The impossibility of reform, the heinous nature of the crime, the shock to the public conscience, none of these things sufficiently justify the right of a fallible institution to take someone’s life.
•The harm of this loose standard is on full display in this verdict under discussion. After the verdict is delivered in any criminal trial, lawyers make what are called ‘mitigating arguments’ — essentially to contextualise the convict as an individual and not as the accused.
•In this case, first, the court orally convicted ‘en masse’ several of the accused instead of declaring the charges proved against them separately. That is, out of the 78 accused, 49 were convicted, but the point of calling it ‘en masse’ is because it was done in groups based on charges, and not for each accused; consequently, not indicating the individual roles of the accused. It then directed the defence to commence sentencing arguments without access to the lengthy written judgment that contained specific findings of the court. By depriving the defence of the verdict, the court crippled even the possibility of making a proper mitigation argument. In a bizarre turn of events, the prosecution argued that the defendants should argue for mitigation before it would even disclose which convicts it intended to seek the death sentence. The role attributed to each of the accused was different. By equating them for mitigation purposes (individual circumstances were unaccounted for and context and circumstances were considered to be the same) and handing down a mass death sentence, the court has only opened the door for greater misuse of a questionable power to end a life without any oversight.
Evidence of humanity
•Mitigation turns usual court proceedings on their head. Unlike other trial stages where a court adjudicates between competing legal identities of an accused, the complainant, etc., in mitigation, the court hears evidence of a person’s humanity. Do they play cricket? Do their neighbours like them? Do they feel remorse or empathy for the people they affected? What if they are innocent? How should they feel contrition then? Do they demonstrate the possibility of readjusting to life outside prison if they are ever released? It allows discretionary sentencing to don a veneer of compassion when both outcomes — incarceration or death — are fundamentally inhuman. Hearing mitigating circumstances requires — however temporarily — for the trappings of distance and formality to be stripped away so that a court may see a person instead of a convict. As the keeper of public conscience, the court’s decision to ignore all reasons to let someone live says more about our collective bloodlust than the 38 people we keep pretending are not one of us. It relies on a remarkably craven view of human potential.
•Maybe calling it the death ‘penalty’ itself is problematic. It is not a levy on delayed tax filings or a moment in a football match. Such a permanent sentence requires us to assume that our institutions are infallible and user-proof. To cast this as a simple ‘penalty’ ignores what it truly does — and did in this case; it negates the individual for the final time.
📰 An appetite for war but no place for peace
•News has just beamed on television screens that Putin has called off the war, expressed remorse at what he has done, deeply regretted the horror he unleashed. He has also publicly apologised for mass murders and for the suffering he has caused to survivors. This has a tremendous impact on other modern warrior politicians. George Bush and Tony Blair both apologise for the devastation they caused in Iraq. Suddenly, we, humans, are on the verge of a dramatic, revolutionary change in our perspective on the world and the way we think about ourselves. This is a genuine step towards a peaceful world; one in which wars have no place and violent conquests are a thing of the past.
•I have allowed my utopian imagination to take flight despite an ongoing brutal war that impacts the entire world — hardly a good time for moral self-indulgence. Yet, I feel justified because something like this has occurred at least once when around 260 BCE, Ashoka famously renounced war and conquest. Ordinary people have railed against war ever since. Massive popular protests against wars have been witnessed in our own times. But there is no other instance, to my knowledge, when a conqueror denounces his own actions and takes humankind in a new moral direction.
•It took a cataclysmic act to transform Ashoka. For until then, he was himself a follower of the warrior ethic. In pre-Ashokan elite culture, hyper masculine virtues were eulogised. In the Rig Veda, Indra, the god of sky, rain and thunder, who, being strong and violent, is also the god of war. Blessed with a muscular physique and terrifying demeanour, he, through sheer brawn, is able to push apart the world into two halves (heaven and earth), release primordial waters, split open the cosmic mountain so as to free imprisoned sunlight and cattle. With his ojas, a Sanskrit word signifying both physical strength and the power to dominate, Indra pulverises rivals. To politically subjugate the enemy, he happily destroys, crushes, splits apart, slays, and breaks his spirit. Real men take Indra, the most important Vedic god, as the role model and are called śūra (“big/strong man; champion”). They are skilled in horse and chariot combat. They flex muscles in cattle raiding expeditions and glorify warfare. Here, violence and conquest are a way of life. Invasion of someone else’s territory and its occupation are considered entirely legitimate.
Anti-war consciousness
•Ashoka himself followed this ethic until the conquest of Kalinga when the scale of wanton destruction, the displacement of 1,50,000 people, and the death of at least 1,00,000, left him distraught and changed his perspective. “On conquering Kalinga, the Beloved of the Gods (Ashoka) felt remorse, for, when an independent country is conquered, the slaughter, death, and deportation of the people is extremely grievous... all survivors... suffer violence, murder, and separation from their loved ones. Even those who are fortunate to have escaped its direct impact suffer from the misfortunes of their friends, acquaintances, colleagues, and relatives.” Thus, the war had tragic consequences for practically every resident of Kalinga. He goes on to say, “even if a thousandth of that many were to be slaughtered or deported today, it would have weigh heavily on his mind”.
•Romila Thapar rightly notes that ‘the regret and remorse at the suffering in Kalinga is not the regret of a man moved by a passing emotion, but the meaningful contrition of a man who was consciously aware of the sorrow he had caused’. Thenceforth, Ashoka publicly denounced the glorification of conquest and dismissed the idea that fame and glory are goods in themselves. The only kind of fame and glory he wished for is one that is achieved by obeying and following the Dhamma, i.e. public and political morality.
•From now on, central to the king’s Dhamma is Sarvajana, sarvalokahita (welfare of all living beings in this world and hereafter). War and conquest upset the physical security of humans as well as the valid pursuit of these goods. Therefore, these must be eschewed. True glory lies in elevating life-sustaining goods of ordinary persons above power and conquest. Thus, by formulating Dhamma, Ashoka attempts to reshape the Brahmana-kshatriya masculine culture in its entirety. By rejecting the warrior ethic, Ashoka launched a radically new vision of kingship in which violence became a contingent rather than a necessary, constitutive feature.
•In Ashoka’s ethic, wars, organised violence between or against groups, bring chaos and devastation. They do not spring from human nature nor are they intrinsic to the human condition. They stem from insatiable greed and gargantuan ambition. Although it is hard to imagine a world without anger and aggression, or conflict-free human condition, multiple ways exist to manage and contain them. Large-scale violence and war are avoidable.
Humanity’s refusal to learn
•Yet, the human species refuses to learn. Alternatives to organised violence stare us in the face but powerful rulers carry on regardless. Worse, they invariably justify their cruelty, offer puerile rationalisations and incessantly reinforce the belief that war is a part of human nature and violence ingrained in our DNA. A subtler justification of war points to the good results it begets. Did not the position of women improve after the Second World War? Did war not get Europe its welfare state? Did it not improve longevity by improvements in education, technology and medicine? These arguments are absurd. Of course, bad things have unintended consequences that may in the long run be good for us. But that is not reason enough to aim to bring about the bad. We must seek out the best peaceful alternatives to secure the good. In any case, we cannot forget that wars are instigated by strong, ambitious men to intimidate the weak into giving up something generally valuable. Wars bring devastation to the many in order to bring enormous material gains to the few. It is therefore painful to see our elected governments pay vacuous lip service to peace. At international fora we condemn acts of war and pontificate on their futility. But in the same breath we ridicule peace makers as effeminate. Our public discourse continues to be replete with the glorification of machismo.
No respite from wars
•Ironically, human awareness against the inevitability of war has grown at a time when the frequency and scale of war have increased exponentially. The 20th century can be aptly described as the Age of Wars with the first quarter of the 21st century already an extension of the 20th century. I will not be surprised if not a single day in the last 100 odd years has passed without large-scale violence and destruction in one or the other part of the world. And not a single year since the so-called ‘long peace’ has passed in which the most powerful countries in the world have not bombed one or the other of their perceived enemy. Ordinary people in some or the other region of the world have suffered its brutal consequences long after formal war is over. It is more than 2,000 years since we developed a well-articulated moral consciousness against war. But humanity is nowhere near walking the talk.
