Crime, clemency and the grey space of convicts’ rights

In July, the Supreme Court, in Shubhashankar v State of Karnataka, brought legal proceedings to an end in a sensational case that must be familiar to the residents of Bengaluru. This was the case of a law student called Shubha Shankar, who murdered her fiancée with the help of her boyfriend and other accomplices, because her family had pushed her into an arranged marriage. The case resembles a whodunnit, and someone even made a movie out of it, called Ring Road, since that was the location of the murder.

The incident happened in 2003. In 2010, a trial court sentenced all the accused to life imprisonment. The accused appealed to the Karnataka High Court, which upheld the conviction. They appealed to the Supreme Court, which in 2025 confirmed the decision of the High Court. Here’s where things get interesting. The Supreme Court held that, as a matter of law, this was murder. The accused planned the assault, recruited the crew, and tried to get rid of incriminating evidence. And yet, the court was not unsympathetic to their circumstances.

The judgement is striking – the first few pages are not about the facts leading up to the murder, but about the circumstances in which the accused found herself. She was a student in a law school, studying about the rights of citizens and yet, had little agency in the most important decision in her life. Why do people commit crimes, the court asked while setting a context, and discussed social and cultural circumstances that lead to a person doing something immoral and illegal.

Strikingly, after the court decided to confirm the conviction, it turned to the point of clemency. It said, ‘We do not wish to end our judgement by merely rendering a conviction. We do believe that this Court has a little more role to play.’ The court discussed Article 161 of the Constitution, which details the powers of the Governor of a state to grant pardons to people convicted of any offence, or commute their sentences.

It noted that Article 161 empowers the state to reintegrate an offender into society, once they have realised their mistake. The accused were in their twenties at the time of the offence; it had been more than two decades since the case entered the judicial system, and the conduct of the accused in prison had ‘not been adverse’. The court stated that the accused “were not born as criminals, but it was an error of judgement through a dangerous adventure which led to the commission of a heinous crime.”

It gave time to the accused to submit a petition seeking pardon before the Governor of Karnataka and stated, ‘We would only request the constitutional authority to consider the same, which we hope and trust would be done by taking note of the relevant circumstances governing the case.’ The court restrained the police from arresting the accused until the clemency petition was disposed of.

Regardless of the merits of the case, this judgement allows us to study the concept of clemency. Clemency appears to be a contradiction in terms. How can one part of the legal system decide someone is guilty and another decide they are not? The answer might lie in the nature of the law itself. The law recognises that adherence to a code of conduct does not always result in complete justice. In some instances, the law might want to mitigate its own rigour such that a person is treated justly by the state. English law, from which Indian law derives, achieves this in different ways, clemency being only one part of this endeavour. English law has always made a distinction between law and equity, with equity providing rights to people that the law would say they are not entitled to.

This brings me to my second point. The idea that one can recede from the law cannot be decided by the judicial system itself. The law recognises that such decisions must come from outside. Clemency is granted by the executive and not the judiciary. There must be a separation of powers, and the power of clemency is an exercise of political morality, not legal reasoning. Because the law takes a back seat, the process of clemency is obscure. Politicians make decisions based on public opinion and a sense of justice, but the process of decision-making is not always clear, and probably deliberately so. In the past seven decades, through various decisions, the judiciary has made it clear that it can review the decisions of the executive in cases of clemency, but this review is narrow and limited. When it comes to clemency, the law realises its own limitations and makes space for grey in a sea of black and white.

(The writer is a law professor who thinks that the law is too important to be left to the lawyers)

(Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.)