Should President and Governors forego clemency power?

Discussion in 'Politics & Society' started by tramp, Mar 15, 2013.

  1. tramp

    tramp Senior Member Senior Member

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    I have been wondering for some time if it isn't high time President and Governors are stripped off their power to grant clemency vested on them by Article 72 and 161 respectively of the Constitution.
    My points are:
    1. The power is being abused politically to pick and choose the timing of the rejection or acceptance of the plea, affecting the credibility of all institutions involved in the process.
    2. It assumes that there is more judicial wisdom outside the country's apex court which is sheer fallacy and undermines, to some extent, the sanctity of the judicial process.
    3. The power to grant clemency in India is a derived from the British crown's right over the lives of its citizens and is anachronistic in a republic like India.
     
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  3. VIP

    VIP Ultra Nationalist Senior Member

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    The motive of these articles are understandable despite your claim of undermining judicial process and people but Who'll remove it, if it's being misused politically ??? Politicians ???
     
  4. tramp

    tramp Senior Member Senior Member

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    When the provisions were originally included, the Constitutional Assembly was only following the convention in other countries, including Westminster model. But it is time a rethink is made of the provisions, especially in the light of the Afzal Guru drama. I believe hanging on to the execution on political grounds worsened the situation.
    The point is not who will take the corrective steps. But I believe it needs to come into the realm of public discussion.
    As far as the Constitution is concerned, this clemency provision is not part of the basic structure and can be amended.
     
  5. VIP

    VIP Ultra Nationalist Senior Member

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    Obviously can be amended but who'll ? As I said we all can see the misuse and we all agree about the political agendas are being executed with this power. But who'll ?? I wanna know if SC has such power to overcome or to manipulate the power of The President and Governer ??
     
  6. tramp

    tramp Senior Member Senior Member

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    The Supreme Court cannot subject the exercise of President's power of clemency to judicial review. Nor can it amend the Constitution unless the legislature does that. If there are more cases like Guru's and a strong public opinion develops, and maybe, some electoral benefit is perceived, then some political party may raise the issue.
     
  7. dhananjay1

    dhananjay1 Regular Member

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    Indian president is just a replacement for British monarchy. When Indian constitution was being formed, I mean when they were copying British constitution, they decided to replace British monarch for 'president'. At least in UK they have a real traditional monarch being head of the state, in India any non entity chosen by the government is the head of the state and first citizen and we are supposed to treat him as a king and show reverence and call him 'mahamahim'. ROFL
     
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  8. tramp

    tramp Senior Member Senior Member

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    I do not believe there is any harm in having an elected president. And I do not think a traditional monarch is any more qualified than an elected president to grant clemency if it is done fairly. In fact I care two hoots about that vestige of medieval mindset called British monarchy which is equally capable of being corrupted. But the issue I raised is that in the Indian context the power of clemency has degenerated badly. That's the basis of my post seeking rethinking of the constitutional provision.
     
    Last edited: Mar 15, 2013
  9. nrj

    nrj Stars and Ambassadors Stars and Ambassadors

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    Or why don't you bring better President who does his job without playing politics in less obvious cases?

    Compare Pratibha Patil Vs Mukharjee. Pranabda has done excellent job by hanging Kasab. He shut everyone up.
     
  10. tramp

    tramp Senior Member Senior Member

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    There is no way to guarantee the election of apolitical president. That's why the whole question arises... that is once the final appeal/revision/review in the Supreme Court is over, then allowing for this clemency drama to continue, that too without any time frame stipulated, makes a mockery of the whole judicial system that arrived at a conclusion on the basis of a long process and collective wisdom. It's so very ridiculous... look what has happened... with so many petitions pending, the new incumbent has been forced to decide on a host of cases left untouched by a predecessor who seemed to have never existed.
    It looks so ridiculous. That itself shows how arbitrary the provision is being used. Why have it at all then?
     
  11. nrj

    nrj Stars and Ambassadors Stars and Ambassadors

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    If the honorable position can wait for the deserving candidate, then it must.

    Clemency petition is a subjective issue. No one can pronounce if certain person deserves mercy or not. Some case may deserve mercy, some may not. Nothing wrong with President of Indian Union taking the final call.

    Moreover our system believes that every person even convict deserves freedom to claim for mercy. So he/she is in full rights to plead for their life to the person who is above everyone in this country.
     
  12. GPM

    GPM Tihar Jail Banned

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    In this respect they should not bound by the advice of council of ministers. Advice can be taken, but why only from govt? Prez and guv should be free to take advice from any quarter in this respect.
     
  13. tramp

    tramp Senior Member Senior Member

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    No doubt, ideally clemency respects a citizen's right to life. But experience tells us that President is not immune to our country's political frailties. That is why the whole question of rethink of clemency power has arisen.
    Going forward, after years of judicial processing, the long wait over clemency begins. As we have seen in Afzal Guru's case the provision did more damage than it resolved. There are likely to be many more such cases. Why leave room for that kind of a provision that does not really do anything to add to the prestige of the judicial process?
     
  14. nrj

    nrj Stars and Ambassadors Stars and Ambassadors

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    You need to decide first if you don't like idea of clemency petition or you don't like President having discretionary powers.
     
  15. Sakal Gharelu Ustad

    Sakal Gharelu Ustad Detests Jholawalas Moderator

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    Or may be do away with death punishment, if you do not want to give clemency power to president.
     
  16. tramp

    tramp Senior Member Senior Member

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    Whats your difficulty in understanding what I meant? I specifically placed my post in the context of India, where President enjoys the power to pardon. Hope it is not too much to ask you to understand that?
     
    Last edited: Mar 16, 2013
  17. hit&run

    hit&run Elite Member Elite Member

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    A state has to wear the mask of compassion outside the frame work of Law and Judiciary and its award.

    All we need is a President or Governor's discretion to be clever, apolitical and expeditious.
     
    Last edited: Mar 16, 2013
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  18. tramp

    tramp Senior Member Senior Member

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    They are not linked. Though they appear together. We can have capital punishment and still not have the power to pardon, which was incorporated in Indian constitution as a continuation of the royal prerogative of pardon.
     
  19. nrj

    nrj Stars and Ambassadors Stars and Ambassadors

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    You say clemency respects citizen's rights. Then you say it clemency takes too much time so President's power should be withdrawn. I asked you if you favor right to clemency or not? Problem is with wrong Presidents not with the clemency petition.
     
  20. tramp

    tramp Senior Member Senior Member

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    I do not think there is scope for discussion on clemency per se on this thread, because it would have to go back to the whole philosophy behind it. My post is simply on the Indian situation where a highly politicised president is perceived to be ineligible to grant the pardon and choose the timing of giving that final verdict. To support which argument I have cited how the whole judicial wisdom is behind the decision of a final judgment.
    Then you might argue why not elect the right president!! That is never going to happen any more.. with the country's polity getting more and more tainted. What is easier? To remove the president's power to take a decision that is invariably turning out to be politically motivated or framing a whole series of electoral exercises that would ensure that only the most apolitical person succeeds to the post?
     
  21. nrj

    nrj Stars and Ambassadors Stars and Ambassadors

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    Taking holistic view of your proposition over decision should remain apolitical, we will have to withdraw range of functions from President. For example, he/she is supreme commander of forces then why is he/she indecisive?

    Problem here is simple. Person who is on death sentence deserves the right to plead for mercy. Where is he going to plead other than court? Prime Minister? Parliament? Facebook? President is the person with highest paper authority in this country. Mercy pleas are going to reach him/her only. It is duty of citizens to elect better representatives who will in turn put better President in Rashtrapati Bhavan.
     

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