"Grant Of Pardon" Or "Sale Of Indulgences"

Hark back in history and find Pope Leo X launching an indulgence-driven campaign to raise funds for construction of a grand basilica of St. Peter's in Rome. One also finds Albert of Brandenburg, a priest, granting an indulgence franchise in his territory for eight years, and telling his indulgence vendors that they could promise purchasers a perfect remission of all sins and that those seeking indulgences for dead relatives need not be contrite themselves, nor confess their sins. European church history further records that an experienced Dominican vendor named John Tetzel, launched into a sermon, or sales pitch, that included a jingle- "As soon as the coin in the coffer rings, The soul from purgatory springs."

Now, fast forward to Twentieth Century America and find Marc Rich, a fugitive financier getting presidential pardon from Bill Clinton and his ex-wife Denise donating over $1 million to Democrats and Clinton's presidential library. Along with Marc Rich on similar considerations, 140 people also get the same benefits. The stink continues and hits the roof under President Trump who like Clinton, appears open to being lobbied for pardons overlooking the normal screening process of the justice department and the pardon attorney office. The founding fathers of the American Constitution like Alexander Hamilton, Thomas Jefferson, John Jay (who because the first Chief Justice of the American Supreme Court) and many others turn in their graves.

American Constitutional history records that perhaps no other question consumed so much time of the Philadelphia convention as that relating to the Presidency. The pressing need to have an "energetic yet dignified" executive capable of enforcing National Laws firmly, and one who should lend a note of stability to the new government was the major consideration. However, some entertained a fear that the people would be critical if the executive was made too strong. A group of delegates favoured one man executive, others advocated a plural executive composed of two or three men possessing equal power. The final decision on the presidency was a compromise. The President was to be single and independent of the legislature. In the result Article II section 2 of the Constitution, dealing with the executive powers of the president, was enacted. The said article read as follows;- "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

The American President under the Constitutional Scheme was thus made "a colossus with his feet in clay". In matters of execution of treaties and other executive appointments his powers were not made absolute and unbridled but were controlled by the senate. However, when it came to the grant of Reprieves and Pardons for offences against the United States it was made absolute, i.e. uncontrolled by any other organ of the state i.e. legislature or judiciary. The only limitation for its exercise was that such powers could be exercised only for federal offences and further it would not extend to cases of impeachment. The Senate, House of Representatives as well as the courts, in the words of senator D.W. Brogan, could be "neither a driver, nor a brake and not even a spare wheel".

The Founding Fathers of the American Constitution had their own ideas about how the pardon process should work; Alexander Hamilton provided the most famous rationales for the clemency power. In Federalist paper no.74 he reasoned thus "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men. He further wrote; It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever.

Initially, most Presidents scrupulously followed the rationales. President George Washington (the only president who was elected un-opposed) pardoned two men charged with treason after the Whiskey Rebellion to both show 'mercy' and serve the 'public good' Washington's use of these dual rationales set the clemency standard for his successors.

The American Supreme Court also followed suit and gave its judicial imprimatur to these rationales by giving the most expansive and liberal construction to the pardon powers of the president. In the year 1833 in the case of Biddle v. Perovich 32 U.S. 150 (1833) the court described the pardon power as "part of the Constitutional scheme" and characterized clemency as a decision to be guided by "public welfare."

In 1868 in the case of Ex-parte Garland 71 U.S. 333 (1866) the court also held "It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control."

In the case of United States v. Wilson 274 U.S. 480 (1927), reiterating the same reasoning the court described a pardon as an "act of grace".

Using clemency to address a larger societal concern, Presidents Abraham Lincoln and Andrew Johnson offered pardon in public interest to entice the Confederates to rejoin the Union. President Harry Truman named a panel to recommend amnesty for Selective Service Act offenders after World War II. Both Jimmy Carter and his predecessor, Gerald Ford, offered amnesty to Vietnam War draft offenders. Presidents have also granted pardons and commutations as "acts of mercy" to individuals for a variety of federal offense. Most recipients applied to the pardon attorney's office within the Department of Justice and, months or years later, successfully received a pardon or sentence commutation. The prescribed procedure was always followed.

The post-WaterGate era however, witnessed a complete erosion of the rationales advocated and cherished by the original founding fathers. Recent American History shows that presidents started abusing clemency/pardon powers for their own personal or political benefits. In 1992, George H. W. Bush pardoned several Iran Contra figures, including former Reagan Defense Secretary Caspar Weinberger, for political benefit. Similarly, President Bill Clinton offered clemency to members of the violent Puerto Rican nationalist organization FALN, to gain Latino support for the political races of his wife and Vice President Al Gore. Coming to President Donald Trump, in 2017 President Trump pardoned former Sheriff Joe Arpaio for criminal contempt of court, after Arpaio refused to stop police practices that amounted to racial profiling. Since then, Trump hasn't looked back. Along the way, he has favored a host of well connected, famous, wealthy, or partisan figures for presidential mercy.

Trump has also been swayed by celebrities. He commuted Alice Marie Johnson's prison sentence after Kim Kardashian West visited the White House to advocate for her. He also pardoned the late African American boxer Jack Johnson in a grant pushed by the Holy Wood Film 'Rocky' actor Sylvester Stallone. Overlooking all cannons of constitutional propriety president Trump pardoned his former National Security Adviser, Michael Flynn. Trump's pardon absolved Flynn of "any and all possible offenses" arising from Mueller's investigation, as well as any related grand jury proceedings. The clemency grant used sweeping language, immunizing Flynn from charges based on "facts and circumstances, known to, identified by, or in any manner related to the investigation of the Special Counsel". The Washington District Judge, with a stab of pain, had to drop the proceedings against Michael Flynn by lamenting that the entire exercise was 'pathetically political'. Not satisfied, President Trump has even gone to the extent of declaring that, if need be, he will not hesitate to pardon his family members and himself notwithstanding grave allegations of huge tax evasion against them.

It needs no mentioning that in the light of the recent abuses the exercise of pardon power by the American President warrants a wholesale legal engineering Clemency Scholars and political commentators in U.S.A. have felt that there is urgent requirement to address the issue. Several suggestions have been floated. Many suggest that the pardon attorney's office should be relocated to the Executive Office of the President, which would eliminate the contradiction inherent in a Justice Department responsible for both prosecuting offenders and deciding whether they deserve mercy. Some law professors have also argued for replacing the pardon attorney with a diverse "clemency commission" relying heavily on data, existing apart from the Justice Department. Be that as it may and no matter what the future portends, the new system should establish a regular process, rely on it and ignore the poor examples set by Clinton and Trump. By doing so, it would help restore the clemency review process to its former role as a normal, routine apparatus for granting presidential mercy to federal offenders. The guiding principles should be those expressed by Alexander Hamilton in Federalist No. 74: to use clemency either to show mercy or to "restore the tranquillity of the commonwealth." Respecting these rationales, future presidents should resist any temptation to ignore the usual screening process and abuse the clemency power to enrich their political allies, friends and, of course, themselves.

Mercifully, in India, with a Parliamentary system of government even though Article 72 and Article 161 of the Constitution uses more or less identical language there is no absolute discretion with either the President or the Governor to exercise such powers, in as much as, both are bound by the 'aid and advice' of the council of ministers while exercising such powers.

Refreshingly, unlike USA, limited judicial review is available against arbitrary and malafide exercise of such powers. The power of pardon under Article 72 was reviewed by the Supreme Court in the two landmark cases of Maru Ram v Union of India (1981) 1 SCC 107 and Kehar Singh v Union of India (AIR) 1989 653 in Maru Ram the Court while deciding upon the validity of 433A of the Code of Criminal Procedure, examined the power of pardon under Article 72. It observed thus "Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have indicated above. Political vendetta or party favoritism cannot but he interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise…. "For example, if the Chief Minister of a State releases everyone in the prisons in his State on his on birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness survive." The court further observed, "Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or male fide. Only in these rare cases will the court examine the exercise."