History of the Pardoning Power in the U.S.
The concept of the pardoning power in the U.S. is based on the British "royal prerogative of mercy," where monarchs could grant pardons for convicted individuals.
In the U.S., the power is granted by the Constitution.
The President has the absolute power to grant pardons for federal criminal offenses, except in cases of impeachment.
This includes pardoning before, during, or after a conviction.
The pardoning power has been historically controversial, with examples like George Washington’s pardon for the “Whiskey Rebellion” (1795) and Bill Clinton's pardon of his half-brother in 2001.
More recently, President Donald Trump pardoned his son-in-law’s father in 2020.
Current Controversy
President Joe Biden pardoned his son, Hunter Biden, for federal tax evasion and gun charges.
This action contradicted Joe Biden’s earlier public statements that he would not pardon his son.
Biden justified the pardon by claiming Hunter was selectively prosecuted because of his familial connection.
The pardon has sparked controversy, with critics accusing the President of nepotism and selective justice, similar to past controversial pardons granted by other presidents.
Indian System of Pardoning Power
In India, the President (Article 72) and Governors (Article 161) have the power to grant pardons or commutations to convicts, based on the advice of the council of ministers.
In India, a pardon absolves the convict from conviction, punishment, and any associated disqualifications.
The Supreme Court has ruled that the exercise of pardoning power can be reviewed on the grounds of arbitrariness or improper motives (e.g., the Epuru Sudhakar case, 2006).
The pardoning power in India has been entangled in political debates, especially when mercy petitions are delayed or rejected by the ruling government, raising concerns about the fairness and transparency of the process.
Way Forward
The pardoning power, is increasingly seen as outdated, especially in modern democracies where there is a need for checks and balances.
Critics suggest that the power should be used less for political gain and more to correct judicial errors.
In the UK, the establishment of the Criminal Cases Review Commission has reduced reliance on the royal prerogative of mercy by providing a more transparent process for addressing miscarriages of justice.
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