Source: The Hindu 

Introduction 

The power to grant clemency is a complex and delicate authority vested in executive leadership. It represents a nuanced mechanism of justice that allows for compassion, rehabilitation, and recognition of individual circumstances beyond strict legal interpretations. While this power can be potentially misused. The Hunter Biden case emphasizes the intricate balance between executive authority and the rule of law. While the concept of clemency is deeply rooted in various legal systems, its exercise often raises concerns about transparency, accountability, and potential abuse. 

Clemency Power: Key Considerations 

• Defining Abuse of Clemency Power: It is challenging to clearly define what constitutes a misuse of the pardoning power, as the boundaries of this authority are not always straightforward. 
• Discretionary Nature: The power of clemency relies heavily on executive discretion, which means individual leaders can interpret and apply this power differently based on their personal judgment. 
• Potential for Misuse: There is always a risk that an authority figure might use pardoning powers inappropriately, potentially to benefit personal or political interests. 
• Rehabilitation v. Punishment: Pardoning power raises questions about the balance between punitive justice and the potential for individual reformation and reintegration into society. 
• Legal and Judicial Oversight: The instances where judicial intervention (like the Supreme Court) may be necessary to check the use of clemency powers by executives. 
• Broader Public Interest: While public curiosity might question specific pardoning decisions, such decisions should be evaluated based on their long-term societal impact rather than immediate public opinion. 

International Standards for Clemency 

Internationally, the exercise of clemency power is generally subject to certain standards and principles. These include: 

• Impartiality and Non-Discrimination: Clemency decisions should be made without bias or prejudice, ensuring equal treatment for all eligible individuals. 
• Transparency and Accountability: The process of granting clemency should be transparent and accountable, with clear guidelines and procedures in place. 
• Public Interest: Clemency should be exercised in the public interest, considering factors such as the gravity of the offense, the potential for rehabilitation, and the impact on victims and society. 
• Human Rights Considerations: Clemency decisions should be consistent with international human rights law, particularly the right to life and the prohibition of cruel, inhuman, or degrading treatment. 

Pardon Powers in Different Countries 

United States: 

• Presidential pardons are a constitutional power granted exclusively to the President of the United States. 
• The pardon power extends to all federal criminal offenses. 
• Requests typically go through the Office of the Pardon Attorney in the U.S. Department of Justice. 
• The President can bypass this office and is not obligated to follow its recommendations. 
• Pardons are limited to federal offenses and do not apply to state-level crimes. 
• A pardon does not take effect if the recipient does not accept it. 
• Notable cases include President Gerald Ford's preemptive pardon of Richard Nixon for Watergate-related potential crimes. 
• The extent of pardon power in cases of impeachment obstruction remains legally unclear. 
• The ability of a President to self-pardon has never been tested in courts. 

China: 

• Historically, criminal records in China are not typically removed. 
• As of 2011, only juvenile offenders are eligible for criminal record sealing. 
• Juvenile offenders must meet specific criteria:  
  • Committed crimes before turning 18. 
  • The penalty does not exceed five years of imprisonment. 
• For all other cases, criminal records remain permanently on file. 

United Kingdom: 

• Until recently, UK legislation did not allow for criminal record clearing. 
• In 2019, the Supreme Court declared existing disclosure rules disproportionate. 
• Current regulations allow filtering of offenses committed by individuals over 18:  
  • Possible only 11 years after conviction. 
  • Requires an absence of new offenses. 
• The reform process is ongoing, with the government still needing to implement comprehensive changes. 

France: 

• Criminal records are maintained by the Casier judiciare national (National Criminal Records Office). 
• Three types of criminal record certificates exist:  
  • Bulletin No. 1: Contains all convictions, accessible only to courts 
  • Bulletins 2 and 3: Accessible to administrative bodies and private organizations 
• Legal rehabilitation mechanisms include:  
  • Automatic exclusion of certain offenses from Bulletins 2 and 3 after specified periods. 
    • Example: Three years after a fine. 
    • Example: Five years after a one-year prison sentence. 
• Additional options for record clearing:  
  • Request to court 
  • Judicial rehabilitation based on individual merit. 

Canada: 

• Pardons allow individuals to separate their criminal records from the Canadian Police Information Centre (CPIC) database. 
• Eligibility periods:  
  • 5 years for minor offenses 
  • 10 years for more severe or indictable offenses 
• Exceptions to pardon eligibility:  
  • Offenses against a minor 
  • Three offenses with sentences over two years 
• The pardon application process:  
  • Takes 10-14 months 
  • Involves ten legal steps as specified in the Criminal Records Act of Canada 

Pardoning Power in India  

• The President of India is the constitutional head of the country. The Constitution of India, 1950 (COI) empowers the President with legislative, executive and judicial powers. 
• Article 72 of the COI deals with the judicial power of the President also termed as pardoning power of the President. 
• Article 72, COI 
• This Article deals with the power of the President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases. It states that - 
  • (1) 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. 
    • (a) In all cases where the punishment or sentence is by a court Martial. 
    • (b) 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. 
    • (c) In all cases where the sentence is a sentence of death. 
  • (2) Noting in subclause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force. 

Conclusion  

Ultimately, the executive's clemency power requires a balanced approach that prioritizes both justice and human rehabilitation. Reforms should focus on creating clear guidelines that protect against potential misuse while maintaining the flexibility to address individual cases compassionately. The goal should be to design a system that supports genuine reform, recognizes human potential for change, and serves the broader interests of society.