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Clemency Powers Of Executives: Debate And Implications

Syllabus:

GS-2:

Parliament , Executive

Focus:

U.S. President Joe Biden’s decision to pardon his son Hunter Biden has sparked debate about the executive’s clemency powers. This has led to discussions on whether clemency should remain a presidential prerogative or be reformed to ensure fairness and prevent misuse.

Understanding  The Executive’s Clemency Power:

• The debate around clemency powers granted to the executive has resurfaced due to the U.S. President Joe Biden’s decision to pardon his son, Hunter Biden. This raised questions about the use and scope of clemency powers.
• The clemency power of the executive, particularly the President, has been a subject of intense discussion, with questions around whether it is prone to misuse or overreach. Advocates for and against such powers are concerned with its implications in both the U.S. and India.

Pardoning Power: Key Points

• Definition: The power of pardon allows the executive to grant mercy by relieving individuals from judicial penalties, correcting errors, and tempering harsh sentences.
• In India:
• Article 72 (President): Grants pardons, reprieves, respites, commutations, and remissions for offences related to Union laws, court-martials, and death penalties.
• Article 161 (Governor): Grants similar powers for state laws but not for death sentences.
• Pardoning Types:
• Pardon: Erases conviction and penalties.
• Commutation: Replaces a harsher punishment with a lighter one.
• Remission: Reduces the duration of the sentence.
• Respite: Grants lesser punishment due to special circumstances.
• Reprieve: Suspends a sentence temporarily.
• Key Judgments:
• Maru Ram v. Union of India (1981): Emphasized the need for a just and reasonable approach to exercising pardoning powers.
• Kehar Singh v. Union of India (1989): Affirmed the President’s authority to independently review evidence.
• Shatrughan Chauhan v. Union of India (2014): Focused on the timely disposal of mercy petitions.
• Limitations:
• The President acts on the advice of the Council of Ministers and cannot independently exercise this power.
• Judicial review is available in cases of arbitrariness, irrationality, or bad faith.

The Historical Context and Evolution of Clemency Powers

• Origins of Clemency Powers: Clemency powers trace their roots to monarchies, where kings held the sovereign right to pardon. Over time, this power evolved into a constitutional right, particularly in democratic systems where it is granted to a singular officeholder, such as the President.
• The Role of Clemency in Justice: Clemency has historically been seen as a way to ensure that legal systems do not become too rigid and to allow for mercy in cases where the law cannot fully account for moral considerations or unforeseen circumstances.

The Impact of Public and Political Opinion on Clemency Decisions

• Public Scrutiny and Media Influence: Public opinion plays a significant role in clemency decisions, particularly in democratic societies where media and social platforms ensure real-time scrutiny. While transparency is essential, the public may not always be able to see the broader, long-term consequences of such decisions.
• Political Motivations: Clemency decisions, especially in politically charged cases, are often influenced by political considerations. The decision to grant or deny clemency can reflect broader political agendas, creating concerns about the impartiality of the executive’s actions.

Cleansing the Misuse of Clemency: Should it be with the Legislature or Judiciary?

• Sanjay Hegde’s View: Vesting clemency in the legislature could be as vulnerable to misuse due to potential corruption or majority rule. Historically, clemency powers originated from monarchies and were granted as an expression of sovereignty. It is seen as a power to ensure justice when legal systems fail to accommodate moral or exceptional circumstances.
• Alok Prasanna Kumar’s View: Agreeing with Hegde, Kumar emphasizes that clemency is inherently political and cannot be purely legal. During the U.S. Constitutional debates, figures like Alexander Hamilton advocated for clemency to be vested in a single officeholder, ensuring that mercy could be extended in unique cases where the law could not achieve justice.
• Judicial Review: In India, while clemency decisions by the President or Governor can be challenged in court if proven to be mala fide or irrelevant, defining misuse is difficult. Judicial review over clemency could be inconsistent due to the subjective nature of mercy.

The Need for Independent Commissions or Transparency

• Independent Clemency Commissions: Even if independent commissions were established, their advice would not be binding. The executive, specifically the President, would still make the final decision, as seen in historical examples where clemency decisions, such as President Ford’s pardon of Richard Nixon, were based on broader public interest.
• Public Perception and Accountability: Public opinion is often divided on clemency decisions. While transparency is important, as social media ensures public scrutiny, it does not guarantee universal approval of decisions. Public perception can evolve over time, making it difficult to define a “right” decision at the moment.

U.S. Congress’s Role and Legal Reforms

• Congress’s Role: Even if Congress attempts to regulate clemency decisions through laws such as the Protecting Our Democracy Act, these laws can only guide the process but cannot fully control executive discretion. Clemency is seen as a uniquely human act that allows for reconsideration based on new evidence or changing circumstances.
• Legal Frameworks and Misuse: No law can fully prevent the misuse of clemency, as those in power may still act on their biases or political motivations. The challenge lies in defining the boundaries of clemency and ensuring accountability without limiting its essential humane aspect. The lack of clear legal guidelines complicates the process.

Reforms in India’s Clemency System and Lessons from the Hunter Biden Case

• India’s Clemency Process: In India, clemency decisions have been less prone to abuse, but reforms are still necessary. Historical examples such as the prolonged deliberation over the Rajiv Gandhi assassination convict, A.G. Perarivalan, illustrate the challenges in clemency decisions, where gubernatorial discretion sometimes conflicts with the government’s advice.
• Reformative Justice and Expedited Processes: Reforming India’s clemency process should focus on prioritizing rehabilitation and reformation. There should be quicker decisions on parole, remission, and early releases for non-capital offences. Convicts who show genuine remorse and good behavior should have the opportunity for an earlier release, reflecting a focus on reformation over retribution.
• Public Curiosity vs. Public Interest: Clemency decisions are often influenced by public opinion, but these decisions should not be subject to public pressure. While the public may desire transparency, the decisions must prioritize the long-term societal interest, focusing on justice, mercy, and reform rather than pandering to immediate public sentiment.

Challenges in the Current Clemency System:

• Subjectivity in Decision-Making: Clemency decisions are inherently subjective, influenced by personal biases, political pressures, and varying interpretations of justice, making it difficult to establish clear guidelines.
• Potential for Misuse: There is a risk of clemency being used for political gain, leading to perceptions of favoritism or corruption, especially in high-profile cases.
• Lack of Transparency: While some clemency decisions are transparent, others lack adequate public explanation, which can undermine trust in the process.
• Difficulty in Defining Abuse: It is challenging to define what constitutes abuse or misuse of clemency, especially in cases where future perspectives may change.
• Judicial Limitations: Judicial review of clemency decisions remains limited, as courts cannot easily intervene in cases based on the subjective nature of mercy and the inherent political dimensions.

Way Forward for Reforming the Clemency System:

• Establish Clear Guidelines: Developing a set of transparent, objective guidelines for clemency decisions can help limit subjectivity and ensure consistency while maintaining flexibility for exceptional cases.
• Enhance Public Accountability: Encouraging greater transparency in the clemency process, such as disclosing the reasoning behind decisions, can build public trust and reduce suspicions of misuse.
• Strengthen Oversight Mechanisms: While clemency decisions should remain with the executive, independent oversight bodies or advisory commissions could be established to provide recommendations without binding power.
• Focus on Rehabilitation and Reformation: Prioritizing reformative justice in clemency decisions, particularly for convicts who show genuine remorse and good behavior, can help foster rehabilitation and reduce recidivism.
• Judicial and Legislative Collaboration: While clemency powers should remain vested in the executive, greater collaboration between the judiciary and legislature on the scope and exercise of clemency powers could help balance mercy with justice.

Conclusion: A Balanced Approach

• Clemency powers, whether in the U.S. or India, should remain with the executive but with proper guidelines to prevent misuse. The system requires ongoing scrutiny, transparency, and reform to ensure it remains just and humane.
• Both countries must continue to evolve their processes to ensure that clemency is exercised wisely, balancing mercy and justice in an increasingly complex world.

Source: Indian Express

Mains Practice Question:

Discuss the challenges and reforms needed in the clemency system, particularly in democratic nations. How can clemency powers be balanced to prevent misuse while ensuring justice and mercy?