The laws of every country provide a process for forgiving individuals found to be victims of what Hamilton, in Federalist Paper No. 74, calls ‘unfortunate guilt’. Pardon or clemency can be used to achieve justice by individualizing sentences and remitting undeserved punishment. It rests on a vision of human nature that is fundamentally less pessimistic, since it assumes that some people deserve to escape whipping. Clemency, exercised in this way, can properly be said to be a fundamental part of any system of justice.
The attention which the pardon power has attracted is perhaps attributable to its inherently paradoxical nature: clemency is often thought of as an expression of mercy that enhances justice in a broader sense by suspending the operation of our justice system. Thus the consideration of clemency necessarily calls into question fundamental beliefs about the nature and purpose of punishment itself and, ultimately, about what constitutes justice. Given the relationship of clemency to conceptions of justice, it is surprising that clemency has not historically been exercised in any principled fashion. The legacy of arbitrary exercise of the clemency power, an atavistic remnant of the royal prerogative, is today firmly established in our jurisprudence. Some would assert that this can be explained by a typically American callousness towards matters of injustice; however, the exercise of clemency in many societies has been characterized by such arbitrariness.
Pardon Power: Meaning
The pardon power is something of a living fossil, a relic from the days when an all-powerful monarch possessed the power to punish and to remit punishment as an act of mercy. It is the oldest form of release procedure and it survives in some form in every state in the union and almost in every country of the world except China. Although the term clemency is sometimes treated as a synonym for all manifestations of mercy, it can also be used in its narrower sense to denote leniency or mercy in the exercise of authority or power. Thus pardon may be used to refer to the forms of leniency extended by various branches of government, most often the executive, to remit the punishment of those who have transgressed society’s laws.
Within the broad ambit of pardon are four specific varieties of leniency commonly recognized under the Indian Constitutional law: pardon, commutation, remission, and reprieve. Although the term pardon is sometimes used interchangeably with clemency to refer to the general power to remit punishment, pardons can be said as a discrete component of the clemency power. A pardon provides the most sweeping remission of the consequences that normally attend violations of the law.
The Indian Scenario
There may be many instances where, though a man offends against the letter of the law, peculiar circumstances in his case may entitle him to mercy. It is impossible for any general law to foresee and provide for all possible cases that may arise; therefore an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice. For this reason such a power ought to exist somewhere, and where could it be more properly vested than in a man who had received such strong proofs of his possessing the highest confidence of the people?
Judicial Review & Pardon Power
The reason for limiting judicial review on the premise that the repository of power is the highest executive of the State is fallacious. The well settled constitutional position is that every function to be discharged by the President under our Constitutional scheme, including the power to issue a proclamation under Article 356, has to be discharged only upon and in accordance with the advice of the Council of Ministers. The Supreme Court has held that the expression ‘Central government’, wherever it occurs in the Constitution, is a shorthand for the Central government. There is no scope for exercise of individual judgment or discretion on the part of the President in the matter of issuance of a Presidential proclamation under Article 356. The satisfaction is, in reality, that of the Council of Ministers and, when challenged, becomes the subject matter of judicial review. Consequently, repeated references to the high position occupied by the President and his being the head of the State are devoid of legal and constitutional significance and are totally irrelevant in determining the scope and ambit of judicial review.
In any event, the correct legal position is that the susceptibility of a decision to the supervision of the courts must depend, in the ultimate analysis, upon the nature and consequences of the decision, and not upon the personality or individual circumstances of the person called upon to make the decision.
Furthermore, the conclusion about non-justifiability based on the implied premise that the President exercises prerogative power in issuing a proclamation under Article 356 is unwarranted. The Constitution does not recognise the doctrine of prerogative and power under Article 356. Moreover, according to Lord Roskill in Council of Civil Service Unions v. Minister for the Civil Service, prerogative powers include the prerogative of mercy which, according to him, is not susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process.
This is clearly contrary to the decision of the Supreme Court in Kehar Singh v. Union of India, in which the Constitution Bench has unanimously held that the order of the President under Article 72, which confers upon him the power to grant pardon, is not completely beyond the judicial review which is available for determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power.
Unlike the British Parliament, which had succeeded in placing some limits on the royal pardoning prerogative nearly two centuries ago, Congress’ efforts to restrict the President’s power were unavailing, largely because of the expansive interpretation given to the presidential pardoning power by the branch whose duty it is to say what the law is – the judiciary.
In United States v. Wilson, the first Supreme Court case to discuss the presidential clemency power, Chief Justice John Marshall defined a pardon as an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. Implicit in Marshall’s definition is the notion that the executive can dispense such clemency in any form, at any time, and for any reason, in all cases except impeachment. Although the Court later eschewed Marshall’s vision of a pardon as something akin to divine forgiveness, it nevertheless has consistently interpreted the President’s clemency power broadly.
Conclusion
The remission of punishment must be administered in a principled, consistent fashion in order to identify those principles that should direct the exercise of the pardon power. Since ancient times the power of the executive to suspend the operation of the justice system by extending pardon to an accused or convicted criminal has been a fundamental part of criminal justice systems. It continues to figure prominently in the American system despite its discordance with the checks and procedures that characteristically attend other executive powers. Exercises of the pardon power can usefully be divided into those that further principles of retributive fairness and those that are unrelated to principles of justice. The consistent, principled administration of pardon can best be realised by making this bifurcation explicit and removing the former category of pardon decisions from the unguided authority of the chief executive. The changing political climate underscores the need for principled exercise of the pardon power. Harsher sentencing standards and growing public sentiment in favor of capital punishment have resulted in an increasing number of death penalty cases finding their way into the pardon process. The atrophy of the pardon power is even more pronounced than these statistics indicate. Even when a pardon is granted today, it rarely results in the remission of punishment. The executive pardon power has been used as far back as the 1950s, primarily as a means of rehabilitating the criminal record of those who have long since been released from prisons rather than as a way of assuring that justice is served. The rarity of granting a pardon on the grounds of innocence is due at least in part to a conservative philosophy about the pardon’s proper role.
Thus, the presidential pardon has been so trivialized that it is now used almost exclusively to cleanse the records of federal criminals after they have managed to stay out of trouble for the requisite five or seven years. The pardon power has become little more than a certification that, with the advantage of CBI information and extensive study, the President has judged that the petitioner is clean.
Setting up a Pardon Commission
Any refinement of the pardon power should take into account the justice-enhancing and justice-neutral aspects of remitting punishment. Different considerations underlie these two types of pardon and they must be applied discretely, with a view to the function each serves. Therefore, the pardon process may be bifurcated. While the executive alone would remain responsible for making occasional justice-neutral pardon decisions, justice-enhancing pardon decisions would be made by a professional board that is independent of the political pressures which inevitably distort the decisions of elected officials.
Putting up Pardon Standards
Once a pardon commission has been created, it should be guided in its decisions by explicit, internally consistent standards governing the mitigation of punishment like:
• Substantial Doubt of Guilt: When there is a substantial doubt of guilt, the offender’s punishment is not deserved and should be remitted.
• Diminished Mental Capacity, Retardation, Intoxication, or Minority: Retributive philosophy presumes that punishment is defensible insofar as it is related to blameworthiness.
• Special Circumstances: A related reason for granting pardon based on disparate sentencing exists when a sentence is disproportionate in light of the offender’s age or terminal illness.
• Crimes Committed Out of Necessity, Coercion, or Adherence to Moral Principles: Remission of punishment for certain crimes committed out of physical, psychological, or moral necessity can be justified. One who is coerced into committing a crime is not as deserving of punishment as one who voluntarily chose to violate the law, and the punishment imposed on each should reflect this difference.