Constitutional spirituality—the idea that a constitution embodies not only legal rules but an animating moral ethos—requires both fidelity to the rule of law and openness to compassion that transcends strict legality. Adam Perry’s article, Mercy and Caprice under the Indian Constitution, offers a nuanced account of India’s executive pardon powers under Articles 72 and 161, and it reveals a persistent tension between mercy as moral grace and the demands of predictable, rational governance. In the light of Perry’s analysis, constitutional spirituality must be re‑imagined to accommodate both the rule‑of‑law spirit and the spirit of mercy, even when mercy appears capricious. This essay critically reflects on Perry’s argument and shows how it enriches and challenges our understanding of constitutional spirituality.

Mercy Powers as Expression of Constitutional Spirit

Perry begins by situating Articles 72 and 161 as exceptional grants of executive authority: the President and Governors may “grant pardons, reprieves, or remissions of punishment” for specified offences. While these “mercy powers” are subject to judicial review, the Supreme Court has emphasized that executive clemency must not be exercised “capriciously or arbitrarily.” From a constitutional‑spiritual perspective, these mercy powers constitute a moral reserve within the constitutional order—an institutionalization of compassion and atonement that lies beyond the realm of strict adjudication. In other words, they embody a spiritual dimension whereby the state acknowledges human fallibility and the need for grace, even as it enshrines the rule of law.

The Dual Faces of Mercy: Positive and Negative

Central to Perry’s analysis is the distinction between positive mercy—correcting excessive justice—and negative mercy—showing grace beyond what justice demands. Positive mercy aligns closely with constitutional spirituality’s commitment to fairness: it ensures that punishment remains just by allowing the executive to remedy overly harsh outcomes. Negative mercy, by contrast, involves supererogatory grace—an act of compassion that transcends duty. Constitutional spirituality must encompass both aspects: the first safeguards the integrity of rights and human dignity, while the second affirms the spirit of generosity and abolishment of legal cruelty that the framers implicitly endorsed when they vested mercy‑powers in the executive.

Caprice as Necessary Counterbalance?

Perry observes that efforts by Indian courts to eliminate “caprice” in pardon decisions risk eroding both forms of mercy. A purely rule‑bound approach would consign mercy to the realm of “positive mercy” alone—correction of legal errors—while extinguishing instances of negative mercy, which by definition cannot be fully articulated in advance or rationalized by precedent. From the standpoint of constitutional spirituality, caprice in mercy is not merely tolerable but instrumental: it protects the optional character of supererogatory grace. A constitution animated by spiritual values must allow the executive the latitude to respond to human suffering in unpredictable cases, preserving the moral essence of compassion.

Judicial Review and the Spirit of Law

The Supreme Court, beginning with Maru Ram (1981), held that mercy decisions are subject to review for mala fides, irrelevant considerations, and “arbitrariness.” This jurisprudence underscores the rule‑of‑law spirit within constitutional spirituality: laws and powers must be wielded rationally, respecting legitimate expectations and preventing corruption of mercy into favoritism. Yet, Perry warns, an overzealous judiciary may stifle the very spiritual dimension mercy exists to protect. When courts demand case‑specific reasons for every pardon, they effectively convert negative mercy into positive mercy or legal error‑correction, thus flattening the constitution’s spiritual richness into mere proceduralism.

Positive Mercy and Systemic Coordination

Perry argues that positive mercy poses a coordination problem: if judges individually decide when to correct unjust sentences, the overall system may swing between over‑mercy and under‑mercy, undermining predictability. Vesting these decisions in a small executive body enhances systemic balance. Constitutionally, this design reflects the framers’ spiritual insight that justice requires occasional exceptions out of collective moral judgment. It affirms that the conscience of the Constitution resides not only in courts but also in a political organ entrusted with mercy.

Negative Mercy as Supererogation

Negative mercy’s supererogatory nature—“a free gift; an act of grace”—places it beyond judicial compulsion. Perry notes that to preserve negative mercy’s moral value, executive clemency must remain fully optional. Constitutional spirituality, in this light, insists on an unfettered moral discretion for the executive: it would be antithetical to spiritual grace if every act of compassion were extractable through legal challenge. Thus, the concept of constitutional spirituality demands that the Constitution’s mercy provisions retain an open‑ended quality, resisting judicial demands for exhaustive reasoning.

Reconciling Rule of Law and Grace

The core challenge Perry identifies is reconciling the rule‑of‑law imperative against caprice with the spiritual imperative of mercy. Constitutional spirituality posits that a living constitution must balance formal justice with moral generosity. While judicial review of “capricious” pardon decisions is justified to safeguard against abuse, it must not extend so far as to transform mercy into a rote legal exercise. Instead, courts should administer a minimalist review, intervening only when clear evidence of malice, corruption, or complete failure of process exists, thereby preserving the spiritual dimension of mercy.

Implications for Constitutional Practice

Perry’s insights suggest several practical implications for constitutional governance in India and elsewhere:

Restrained Review: Courts should develop doctrines that distinguish between illicit caprice (e.g., nepotism, bribery) and licit caprice (supererogatory grace), reviewing only the former.
Transparency without Exhaustion: Executive mercy processes can be made transparent—through publication of broad criteria and advisory opinions—without mandating case‑by‑case justification that would eviscerate negative mercy.
Moral Education: Constitutional forums and public discourse should regularly reaffirm the spiritual values—compassion, empathy, atonement—underpinning mercy powers, fostering a culture that sees clemency as an ethical duty and sacred trust, not merely a legal concession.

Conclusion

Adam Perry’s “Mercy and Caprice under the Indian Constitution” illuminates the ambivalent status of mercy within a constitutional democracy. His dual‑mercy framework clarifies that mercy powers express both justice‑correcting and gratuitous compassion, and that judicial attempts to sanitize caprice risk extinguishing a vital spark of constitutional spirituality. To sustain the Constitution’s moral soul, India’s courts, executives, and citizens must heed Perry’s warning: preserve capricious latitude for acts of grace, even as the rule of law constrains abuses of mercy. Only by honoring both law and compassion can constitutional spirituality flourish as the living conscience of the nation.