The Controversies Surrounding Pardoning Power

  • December 4, 2024
  • Posted by: OptimizeIAS Team
  • Category: DPN Topics
No Comments

 

 

The Controversies Surrounding Pardoning Power

Sub : Polity

Sec : executive

Why in News

  • The controversy surrounding the U.S. President Joe Biden’s recent decision to grant an unconditional pardon to his son Hunter Biden for federal tax and gun convictions has sparked widespread debate. This has raised questions about the use and misuse of the pardoning power, both in the U.S. and globally.

What is the Pardoning Power?

  • The power to pardon allows an authority, such as the head of a state, to forgive individuals convicted of crimes.
  • It absolves the convicted individual of punishment and its associated disqualifications but does not erase the criminal record.
  • The practice stems from the ‘royal prerogative of mercy’, historically exercised by British monarchs to grant clemency, particularly to mitigate death sentences.
  • In democratic systems like the U.S. and India, pardoning powers are codified in their respective constitutions but have often sparked controversies.

Pardoning Power in the United States

  • The U. S. President has absolute power to grant pardons for federal criminal offenses, as per the U.S. Constitution.
  • This power is only limited in cases of impeachment.
  • A pardon can be issued at any stage—before legal proceedings begin, during a trial, or after conviction.
  • While it provides relief from punishment and disqualifications, the conviction record remains intact.

Past Controversies:

  • George Washington (1795): Pardoned leaders of the Whiskey Rebellion.
  • Bill Clinton (2001): Pardoned his half-brother Roger on the last day of his presidency.
  • Donald Trump (2020): Pardoned his son-in-law’s father.
  • Joe Biden’s Decision: Pardoned his son, Hunter Biden, for tax and gun offenses and any potential federal crimes committed between 2014 and 2024.

Pardoning Power in India:

  • Articles 72 and 161: The President (Article 72) and Governors (Article 161) have the power to pardon, commute, remit, respite, or reprieve sentences.

Clemency powers of the President under article 72:

  • It says that the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
  • Pardon –A pardon completely absolves the offender from all sentences and punishment and disqualifications and places him in the same position as if he had never committed the offence.
  • Commutation– Commutation means exchange of one thing for another. In simple words to replace the punishment with less severe punishment. For example, for Rigorous imprisonment-simple imprisonment.
  • Reprieve– Reprieve means temporary suspension of death sentence. For example- pending a proceeding for pardon or commutation.
  • Respite – Respite means awarding a lesser punishment on some special grounds. For example- the Pregnancy of women offender.
  • Remissions– Remission means the reduction of the amount of sentence without changing its character, for example, a sentence of 1 year may be remitted to 6 months.
  • The President can exercise these powers:
    • In all cases where the punishment or sentence is by a court martial;
    • In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
    • In all cases where the sentence is a sentence of death.
  • The pardoning power of President is wider than the governor and it differs in the following two ways:
  • The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
  • The President can grant pardon in all cases where the sentence given is sentence of death but pardoning power of Governor does not extend to death sentence cases.
  • This power of pardon shall be exercised by the President on the advice of Council of Ministers.
  • Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
  • But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
  • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

Key differences between US and Indian pardon systems

  • Jurisdiction: The US President’s power is restricted to federal crimes, while the Indian President can grant clemency for both Union and state offences.
  • Death Sentences: Only the Indian President can pardon death sentences, including those involving state laws. In the US, state governors may pardon death sentences for state crimes.
  • Independence: The US President exercises clemency independently. The Indian President acts based on ministerial advice

Conclusion:

While the US and Indian presidents both hold the power to pardon, the Indian framework is broader in scope but tied to executive advice. The US system, by contrast, is more limited in jurisdiction but allows the president greater independence in decision-making.

Polity The Controversies Surrounding Pardoning Power