Pardoning Power of the President – A Monarchial Curse on the Democratic Constitutions
Author: Shrirang Ashtaputre
ILS Law College, Pune (IV B.A.LL.B)
Management is guided by a set of rules and regulations, which, if abided by consistently, ensures better productivity and a comfortable Life – this was realized by our ancestors and was a major factor in the inauguration of State, a means for governing themselves. And when these modes of governance could not compete with time, scholars, philosophers, and activists played a pivotal role in bringing about the change. Montesquieu, while the Monarchial Powers were at Peak, prescribed for separation of powers between the framers of the law, its executors and its regulators, which was adopted by the United States of America in their Constitution in 1788.
However, the Drafters of the Constitution quite enthusiastically adopted the Pardoning Power which was vested with the Ruler as a matter of Divine Right and granted it to the newly founded position of President, which was subsequently incorporated as a privilege with the Governors of the States. Unfortunately, they ignored the effect of the misuse of exercising this quasi-judicially right unquestionably, resulting in several pardons being granted quite unjustly today, which in no way, serve the general interests of the public.
Criticizing the same, the Author, through the medium of this Paper, laments upon the American Judiciary upholding this privilege as an “Executive Power”, which in fact, contravenes with separation of power and impacts the independence of Judiciary so guaranteed by the Constitution. Highlighting the same, the Author prays for the dire need for providing for Judicial Review of Presidential Pardon, which shall have a final effect – the same shall ensure that the President exercises his powers within the limits of his Constitutional power, besides ensuring that Justice prevails and caters to the deserving.
The concept of Origin of “State”, till date, remains a mystery – while scriptures accredit it as God’s creation for disciplining and preserving mankind, few philosophers averred it as a Human conception for bringing about stability in the rather barbaric and crippling human race of the past. This ignorance has gravely affected the mode of governance, engendering oppressions and consequently revolutions for eliminating the despotism reflected by the State under the guise of Divinity. Naturally, these actions transformed the pre-existing Theocratic Monarchies to Republican Democracies though, several similarities between the powers exercised by the relatively modern forms of governments exist till date – a rather independent Judiciary is prescribed, inter-alia for ensuring the states don’t turn tyrannical like yesteryears.
In spite of the aforesaid, the Author laments the directions of Democratic Constitutions for vesting the Head of the State with the power to grant pardon against the verdicts of the Judicial Forums at his or her whims if convinced with the contents of the Mercy Petition.
Mercy Petition – A Blot on the Judicial Independence
“..whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution..”
Although the idea of ‘representation of people’ in their own governance framework was heavily propounded by the Greeks, it wasn’t until the inception of Magna Carta, that the same was practically realized on a great scale for the maiden time – a weak Parliament was instituted and the King continued to be the supreme authority. Gradually, the Glorious Revolution of 1688 revived the lost spirit of Democracy, which limited the powers of the King by plainly transferring majority of his Powers to the people. These events inspired Montesquieiu’s Theory of Separation of Powers, which aimed for diluting the centralization of powers vested with a Dynastic King among the able Ministers and Members of the society for ensuring effective and efficient governance. Specifically, in his Book The Spirit of Laws, 1748 he prescribed for absolute separation of powers between the Legislature, the Executive and the Judiciary since he believed that it could help in safeguarding liberty of the citizens. He endorsed the independence of all the forms of governments for achieving peace within the Territory and ensuring a better lifestyle for the citizenry. And in the next few decades, this Democratic idea was practically implemented in the Constitution of the United States of America, which, besides doing away with the Articles of Confederation, prescribed alongside a strong and modest Judiciary, a mightier President, who at almost every instance, was subject to the discretion of the Congress, which was elected directly and indirectly by the people, as the case may be. This compromise is referred to as the “Checks and Balances of Powers”, an idea recommended by The Federalist Papers for preventing the concentration of powers with the one wing of the Government. And under the guise of assuring the same for preventing absolutism and unjustness, quite shrewdly, they appealed for the President of the United States of America to have the authority to pardon a person declared guilty by the Competent Court of Law at his own will for catering the needs of the security of the State or Foreign Policy – this unfettering power was however, to be limited only to cases related to treason. Ironically, integrating this privilege as a “discretionary power” of the President showcases monarchial traits, since this concept has undoubtedly been borrowed from the United Kingdom, where the King or the Queen was the absolute sovereign of the Land and naturally, commanded over all other forms of Government – it reflects on the idea of Divine Origin of State, roots of which lie in its ancient past.
Mercy is an integral teaching of nearly every religion in the World – Jesus Christ himself prescribed forgiving everyone possible in order to ensure harmony; while Buddhists worship Avlokiteshvara, a Bodhisattva, regarded as a God of Mercy and compassion, Hinduism narrates tales of Gods and Goddesses completely pardoning the sins of mortal humans. In fact, a strong reason for the rise of Protestantism was the ruthless practice of the Catholics which involved paying a certain amount of money to the Church for regaining innocence; this was the first time in Absolute Monarchial systems that the Divine Authority of Pardoning was challenged. However, this event occurred thousands of centuries after the Divine Authority of the Kings to exercise their Pardoning power had been asserted, which was uniquely implemented by them in various parts of the World – some freed prisoners after a certain time interval, others utilized this indiscriminately to acquit near kins. Kings were assumed to be the Fountain Head of justice and it was expected that they would use this power cautiously and considering how irrationally it was utilized, the Judicial Mechanism and subsequently, the Parliament severely curtailed the Right of the Crown to grant pardon in nearly every sector except for matters pertaining to Impeachments, only after seeking the advice of the Secretary of State for the Home Department. This Royal Prerogative of Mercy, no matter how restricted today, was incorporated by the United States, whose people were previously the victims of the ineffectual administrative system which provided Governors an unrestricted power of pardoning every form of guilt. Nevertheless, it inspired other budding democracies to do the same, setting an unfortunate precedent in spite of a successful revolution. The author opines that such discretionary power is unnecessary since unlike the former times, today, there exists sufficient division of powers and the absence of a single sovereign deems this practice of divine origin redundant in the countries, where the Independence of the Judiciary is provided as a matter of Law – even if the theory of separation of powers isn’t incorporated rigidly, the independence of the judiciary is provided for and cannot be compromised with at any extent, be it for the execution of quasi-judicial functions.
Despite the warnings issued by Justice McLean for not being influenced by the British Laws, with the intention of continuing their legacy of pardoning a guilty, the Court rejected the restriction of the power of the President to pardon a criminal offender since it was his Constitutional Right to do so. What is bothersome is the consistent reliance of the American Courts upon the British Precedents despite having substantially different laws, which actually consolidated this Power of the President, today, one holding this office can grant complete pardon before or after a trial or conviction, and is not subject to any form of limitation by the Congress. By permitting so, its Judiciary has generated a pattern for allowing the rather competent, well-educated and knowledgeable Justices whose sole purpose is to read, interpret the Laws and assure justice to the needy and the deserving to be questioned and undermined by a person having negligible awareness about legal technicalities.
The defense often undertaken for such a privilege is that of public welfare, posing a question as to whether the independence of the Judiciary can be comprised at its expense.
Interestingly, the Author answers it in negation since the only task of the Judiciary is to safeguard the Constitution and coincidentally, public welfare is merely a by-product of this rigorous process. However, by allowing the Congress to decide the modus operandi for the Courts and privileging the President with making Judicial appointments, it appears that the public has a sufficient say in “electing” their Judges and if not directly, are represented even in this form of the Government. It is evident that the provisions of the Constitution are framed in a manner that they assure that Judiciary works only for catering to the betterment and welfare of the citizenry. Consequently, bestowing upon other Branches the opportunity to review and reconsider the verdict of the Court which was influenced solely by facts, evidence, testimonies, and the laws hinders with its functioning besides leaving ample scope for promoting injustice under the veil of “public welfare”. Recently, Ex-Governor of Kentucky, Matt Bevin pardoned a child rapist Micah Schoettle, 41, who was serving a 23-year sentence for rape, and other sexual offenses because the victim’s hymen was intact – This is contrary to the established principle that non-consensual penetration of any form, irrespective of the rupturing of the hymen is enough to prove the commission of the offence of forced sexual intercourse. This practically shows the incompetency of the Executive to exercise Judicial Powers which has now set a hopeless precedent. The plea of mercy petition to the President or the Governor, in the opinion of the author, has the potential to threaten public interest and therefore, must be limited to the maximum extent possible for safeguarding the same and the Law.
Naturally, the framers of the Indian Constitution adopted this pardoning power under Article 72, whereby, the one holding the office was empowered to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence which includes commuting a crime just like any competent Court would if the need be. However, the Indian Courts have asserted that the said power of the President to pardon is purely constitutional since enforcing the Punishment is the domain of the Executive which too, if required, is empowered to cut short a sentence by an act of clemency. Allowing the Executive to alter the verdict of the Judiciary has Common Law Origins and in the United Kingdom, the latter being a dependent body is a sole reason for having the pardoning power vested with the Sovereign in the first place – this technically is against the Constitutional spirit of both, the United States of America and India who have steadily emphasized on synchronized function of the organs of the governments against the puppetry practiced in the United Kingdom.
The author laments the blind faith of the Framers and the Judges in the Common Law System to the extent of justifying the autocratic setup of governance in that Constitution which actually seeks to promote liberalization and increased representation in political affairs. Reading these observations with the aforesaid socio-legal analysis, the Author is compelled to raise yet another question:
By reducing the sentence which is legally prescribed by the Court of Law, isn’t the Executive exceeding the scope of the nature of its functions?
It indeed does, especially when the President utilizes this power to pardon criminal offences, which in fact, are wrongs committed against the public and by doing justice upon the victim is how the public interest is upheld. The faith that the Supreme Court of the United States of America vested with its Constitutional Head for not abusing this supreme power and in fact is an established Common Law precedent which appears to have been done away within India, where, Ex-President Pratibha Patil during her tenure, after scrutinizing several mercy petitions, pardoned 22 perpetrators of gruesome crimes:
- Sushil Murmu: He had be-headed a 9-Year-Old Boy as a sacrifice to Goddess Kali and was awarded the death penalty as it was a “rarest of the rare case”
- Molai Ram and Santosh Yadav: They had Raped and Killed the daughter of a Jailer within the premises of the prison and were awarded the death penalty.
Is remitting the aforesaid persons of their brutal sins serve the better public interest?
Rather, such decisions are a relief for those who have both economic and political backing, resulting in mockery of the Judiciary and the idea of Justice in the first place. For once, the Author pleads to the readers to imagine a scenario wherein the President would have pardoned the convicts of Nirbhaya Rape Case, that shook the faith in humanity:
Would the Judiciary, the spearhead of Justice, be in any position to safeguard the interests of the victim and the public?
Thankfully, the Indian Judicial Forums have curtailed this power vested with the President and the Governors of the States to grant pardons only after seeking the advice of the respective Ministers and have on certain instances, set aside the pardons made by the latter on the grounds of mala fide exercise of Constitutional Power vested under Article 72 and Article 161 of the Constitution respectively.
In summation, the Author believes that as long as the
Judiciary is endowed with greater power to review the Presidential Orders, the
authoritative traits would be subdued and the principles of democracy would be
upheld, which is a Constitutional Mandate –declaring the Judicial decree over
the matter as final, the Executive, while exercising the quasi-judicial functions
would be kept under check in the first place from acting ultra vires the Constitution, as witnessed often in today’s era;
besides, the Constitutional Rights of the victim would be sheltered with the
independence of the Judiciary
 Special Reference No. 1 of 1964 [AIR 1965 SC 745 at 7]
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 Baron de Montesquieu, The Spirit of Laws, trans. Thomas Nugent, 2 vols. (New York: The Colonial Press, 1899), 1:151–162.
 Madison, Federalist No. 51, The Structure of the Government must furnish the Proper Checks and Balances Between the Different Departments Feb 6, 1788 .
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 History.com Editors Martin Luther posts 95 theses Nov 24, 2009. As retrieved from: (https://www.history.com/this-day-in-history/martin-luther-posts-95-theses).
 In UK where there existed Parliamentary system, this right of the King was curtailed over Centuries. This biggest Blow came in Thomas V. Sorrell [ EWHC (KB) J85 (1673) Vaugh 330 124 ER 1098-1113], whereby the Court affirmed that the Right of the King to Pardon was not absolute.
 Mohammad Basheer Ahmad, The Administration of Justice in Medieval India, The Aligarh Uty,1941,at 268.
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 Ed Pilkington Kentucky ex-governor pardoned child rapist because victim’s hymen was intact The Guardian Dec 20 Dec 2019 14.04 GMT. As retrieved from: (https://www.theguardian.com/us-news/2019/dec/20/matt-bevin-kentucky-pardoned-child-rapist#img-1).
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 It wasn’t until 2009 that the Judiciary finally gained autonomy from the House of Lords – although they continue to be the Judges of this Highest Court of Appeal, they have no Right to Vote in the House.
 Damayanti Datta President Pratibha Patil has granted a record 30 pardons in the last 28 months, 22 of these relate to brutal crimes. Why has she done that? India Today Jun 15, 2012 15:04 IST. As retrieved from: ( https://www.indiatoday.in/magazine/special-report/story/20120625-pratibha-patil-mercy-petitions-accepted-758790-2012-06-15).
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