U.S. President Joe Biden has recently granted an unconditional pardon to his son, Hunter Biden, who faced federal tax and gun convictions. 

Key highlights of the Pardoning

• This pardon also extends to potential federal crimes committed by Hunter between 2014 and 2024. President Biden’s decision has sparked debates.
  • It contrasts with his earlier public commitment not to pardon his son.
• The President justified the pardon by alleging selective prosecution against Hunter due to his familial ties. 
  • Critics, however, have raised concerns about nepotism and political favoritism.
• Pardoning power in the U.S. has been mired in controversies since the time of George Washington, who pardoned leaders of the Whiskey Rebellion in 1795. Examples of contentious pardons include:
• Bill Clinton’s Pardon of Roger Clinton: In 2001, President Clinton pardoned his half-brother for drug-related convictions.
• Donald Trump’s Pardon of Charles Kushner: In 2020, Trump pardoned his son-in-law’s father, sparking accusations of favoritism.

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About Pardoning Power

• Pardoning power refers to the authority vested in a head of state or government to grant clemency to individuals convicted of crimes.
• This power can provide relief from punishment, commute sentences, or erase associated disqualifications. However, a pardon does not necessarily erase the record of conviction.
• Pardoning power of the U.S. President: The Constitution grants the President the power to pardon federal crimes, except in cases of impeachment.
• This power is broad, allowing pardons to be issued before legal proceedings, during trials, or after convictions.
• Pardoning Power in India: Articles 72 and 161 of the Constitution empower the President and Governors to grant pardons, respites, reprieves, commutations, or remissions.
  • These powers are exercised on the advice of the council of ministers.

Key Judgments on the Pardoning Powers of the President

• Maru Ram v. Union of India (1980): The Supreme Court held that the President’s pardoning power is subject to judicial review if exercised arbitrarily, irrationally, or in bad faith. It emphasized that the President must act on the advice of the Council of Ministers, ensuring that pardoning is not an act of personal discretion.
• Kehar Singh v. Union of India (1989): The Supreme Court clarified that the President cannot be compelled to give reasons for granting or denying clemency. The Court held that the President’s decision in exercising clemency powers is not open to challenge on merits, reaffirming its discretionary nature within constitutional boundaries.
• Epuru Sudhakar v. Government of Andhra Pradesh (2006): The Court reiterated that the President’s pardoning power is not absolute and can be subjected to judicial review.
• Criteria for Review: Pardoning decisions must not violate principles of natural justice, and they must be free from arbitrariness or mala fide intent.
  • This judgment expanded the scope for judicial intervention in clemency matters.
• Shatrugan Chauhan v. Union of India (2014): The Supreme Court emphasized that delays in deciding mercy petitions can be a valid ground for commutation of death sentences.
  • It highlighted the need for prompt decision-making by the President or Governor to ensure fairness in administering justice.

Origin and Evolution of Pardoning Power

• Origins of Pardoning Power: The pardoning power traces its origins to the British royal prerogative of mercy, a historic privilege exercised by the monarch. Initially, this power served as a way to provide alternatives to severe sentences, such as death penalties.
• Evolution of Pardoning Power: Over time, the pardoning power evolved into a mechanism for granting clemency, often exercised upon the advice of government ministers.
  • This shift reflected the transition from absolute monarchy to a more structured form of governance.
• Role in Modern Democracies: In contemporary democracies, pardoning power holds both symbolic and functional significance. 
  • It is used to correct judicial errors, address perceived injustices, and demonstrate compassion in specific cases.

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Comparison of Pardoning Power: US President, Indian President, and Indian Governor

Challenges and Criticism of Pardoning Power

• Conflict with Democratic Principles: Rooted in monarchy, pardoning power may contradict the rule of law and separation of powers, fostering perceptions of unchecked authority.
• Delay in Justice: Mercy petitions often face delays or rejections influenced by political motives. 
• Political Influences: Mercy petition decisions are often influenced by political considerations, delaying justice and eroding fairness.
• Nepotism and Misuse: Instances like President Biden’s pardon of his son raise concerns about favoritism, undermining public trust in constitutional impartiality.

Alternative to Pardoning Power

• In the U.K., the establishment of the Criminal Cases Review Commission (CCRC) has reduced reliance on the royal prerogative of mercy.
• The CCRC investigates potential miscarriages of justice transparently, providing a more objective means of correcting errors.

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Way Forward

• As long as pardoning power remains part of constitutional frameworks, it must be exercised with utmost integrity. 
• To retain public trust in democratic institutions, this power should be  transparent and free from nepotism or favoritism.
• Pardoning should serve as a mechanism to correct genuine judicial errors.
• The power should be subject to checks and balances, including judicial review.

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