Author Name- Divyansh Singh, a student at Christ (Deemed to be University), Bangalore
Hunter Biden Clemency Controversy: A Comparative Analysis with Indian Legal System
The recent decision of President Joe Biden granting “complete and unconditional” pardon to his son Hunter Biden, has sparked a wideranged controversy in the United States. Young Biden was recently this year convicted of lying about his drug usage while buying a gun. The Young Biden has also been charged with case related to tax evasion. Joe Biden defended his son by saying unless there is a serious situation no person can be brought to trial solely on the basis of felony charges of how they filled gun form. It also gives a bad smell of hypocrisy as early as June Biden said that “I’d abide by the jury decision. And I will not pardon him.” The White House has numerous times repeated claim this year. President Joe Biden alleged that the conviction of his son is a part of “witch hunt,” which is played by the republicans. He said that his son should not be deprived of pardon. While granting pardon to his Biden contended that “I also believe raw politics has infected this process and it led to a miscarriage of justice.” Some of his party members criticised the decision by saying it symbolises the deteriorating concept of liberal politics which is being questioned when it is done by your opponent.
This is not the first instance when favouritism has been done while granting the pardon. Even the former President and Biden’s counterpart Mr. Trump gave 143 pardon during his term involving the pardon granted top the father of his son-in-law. President Bill Clinton awarding pardon to his brother also signifies that this favouritism is no new. These favouritism shows how the political interference while granting the pardon has deteriorate the working of legal framework.
The US media is also reporting that President Biden will provide “pre-emptive” pardon to his close allies, including Kamla Harris, to save them from revengeful arrest by the new President Mr. Trump. This much politicisation of constitutional powers may lead the liberal politics of the US into deteroriating situation.
Historical evolution of Pardoning Power in United States
Power to pardon in US is originally taken from British authority which provide king with the power to eliminate punishment of the wrongdoer. In nowadays also people believe in these judicial decisions are exercised by the government officeholders.
During the decision making of US Constitution, Alexander Hamilton, the first treasury secretary of US, strongly advocated for the introduction of pardon power which introduced the element of mercy. He contended that the power of pardon is a political process and it should not be considered as a clear-cut legal process. He supported this law by saying that it will save people from some drawback of justice system is possessed due to unfavourable circumstances during proceedings.
Constitutional Power to Pardon in United States
The pardoning power in US is defined in Article 2(II (1)) of the US Constitution
which says that “the US President has all the powers to grant pardon or reprieve for the offences committed against the federal laws.” The president cannot provide pardon in the case of impeachment. The pardon in the US remove all the punishments from the offender but do not remove the conviction.
Limits on the power of pardon in US
There are two limitations mentioned under Article 2. The first is that the President can only has the power to pardon the offence against federal laws, he cannot grant pardon to the offences against state laws. Secondly, the President cannot grant pardon in the case of impeachment.
The president can provide pardon at any stage, even before the charges have been filed. The president can pardon before legal proceeding, during trial or after the conviction by the court. The US clemency eliminates all the punishment but it does not clear the criminal records of the offender. The pardon given by the president does not signifies innocence rather it only resolves you from the punishment.
Transparency in the clemency providing system
The power of pardon in US vested in the president. Even if a commission is formed to advise the president on the clemency decision, the advice will be non -binding. President refers wide range of information before providing clemency. In today’s time where everything goes digital rapidly, it will help the citizens to be aware of the reasons behind granting pardon. But it is not easy to say that it will be accepted by the majority of the population. As compare to US, India has used the pardon power more effectively especially at the time of President A.P.J Abdul Kalam, when he went against the government decision to grant pardon in some cases.
The Pardoning Power in US is beyond the purview of judicial review. It can’t be challenged in the court. The decision of the president remains intact. It is very unlikely that US will adopt the system of judicial review related to pardon. In India, the President and Governors are bound by the aid and advice of the parliament and the decisions can be challenged in the court of law. The judicial review to pardon in India is adopted in the case of Epuru Sudhakar v. State of Andhra Pradesh (2006). The court held that it would only review the case where the decision is wholly arbitrary.
Case laws related to Hunter Biden clemency controversy
Ex parte Garland (1866): This particular case established the provision that the decision of pardon by president is absolute and cannot be interfered by legislative decisions.
Schick v. Reed (1974): This case provides the president with powers to grant conditional pardon to appellant.
Burton v. United States (1927): It provides with what can be the political implications of granting pardons.
Power to Pardon in India: An overview
In India, the pardon power is provided under article 72 and article 161 of Indian Constitution. Article 72 provides that the President can grant pclemency in different types namely, reprieve, respites or remission of the punishment given or he can remit or commute the sentence.
Although in Maru Ram v. Union of India, (1981) court held that president cannot decide the clemency on his own, rather it would work on the aid and advice of the parliament. During pardon of the main accused of Rajiv Gandhi assassination, the governor did not given pardon despite the recommendation of the Tamil Nadu government. The Supreme court intervene and he was given the pardon.
Clemency in India is considered a procedure of justice rather it is seen as mercy. The public opinion plays a major role while deciding or giving clemency. In Nirbhaya case a large protest of public led to retributive over clemency.
One of the major problem with clemency in India is the delay in taking decision. The disposing of clemency petition takes a lot of time which is considered as the infringement of the constitutional right.
Case Laws Related to Indian Scenario
Kehar Singh v. Union of India (1989): This case ruled that the pardoning power of president is immune from interference of judiciary but it can interfere on the ground of procedural violation
Epuru Sudhakar v. State of Andhra Pradesh (2006): In this case Supreme
Ruled that pardon case can be judicially reviewed on the basis of mala fide intent and arbitrary decision.
Maru Ram v. Union of India (1980): The court ensured that the pardoning power given in Article 72 and Article 161 should be used with fairness and without any discrimination.
Shatrughan Chauhan v. Union of India (2014): The court ruled that delay cause because followed procedure infringes the constitutional right.
Conclusion
The clemency granted to the Hunter Bidne by the president strengthens the need to find a balance between the government and public in the legal framework of United states. In India, although clemency is a necessary tool to protect the right of the citizens but it is facing challenges caused by procedural delays and the political interference. Some important cases like Epuru Sudhakar and Shatrughan Chauhan played a vital role in forming a integral clemency granting framework in India.
Frequently Asked Questions
Q 1. Who is the sole authority to grant pardon in United States?
A. President of United States of America.
Q 2. Can a President of US grant pardon to the offence against State?
A. No, he can only grant pardon against the federal laws only.
Q 3. Which Articles in provide the pardoning powers to President and Governors in India?
A. Article 72 and Article 161 provides pardoning power to President and Governors respectively.
Q 4. Which Article of the US Constitution contains the provisions for pardoning power?
A. Article 2 of US constitution contains provision for pardoning power.
Q 5. Can a decision of pardon be judicially reviewed in India?
A. Yes, the Supreme Court in Epuru Sudhakar v. State of Andhra Pradesh gave the ruling that the decision of pardon can be reviewed on the ground of mala fide intention.
Q 6. What are the different types of clemency in India?
A. Pardon, reprieve, commutation, and remission are the four types of clemency exist in India.
