What do Charles Kushner, Hunter Biden and the Thanksgiving turkey have in common? Well, they were all pardoned by the President of the United States.
American presidents since the inception of presidency have exercised the absolute power of pardon to let off convicted criminals. There is also a precedent of pardoning their family and relatives. Donald Trump let off his daughter’s father-in-law, Charles Kushner and has named him – let Americans digest that – the next Ambassador to France, while Biden pardoned his son Hunter. The two presidents ignored public opinion even as a sizeable percentage of Americans disapproved of these actions.
As early as the time of the first American president, pardons were often granted on the last few days in office. George Washington pardoned the accused of the Whiskey Rebellion on his last day as president. Similarly, Trump pardoned Kushner a month before he left office while the 140 pardons granted by Bill Clinton were also on his last day as president. Clinton’s favoured men included a billionaire and his half-brother.
The last-minute forgiveness by the presidents overrode the legal process, and made full use of an office which they were not likely to hold again.
Power is undeniably the greatest draw for politicians, the American president being no exception. In the series House of Cards, Frank Underwood says that between money and power, he would always choose power. The US has had the most passionate advocates of democracy who have held the president’s position but they have not sought to divest themselves of this authority. Even though the American constitution has reversed its stance on major issues such as apartheid, it has preserved and guarded this aspect of the president’s office.
Power in India
The Indian state is an enigma. It would appear that India does not permit such concentration of authority in its highest offices.
The Indian head of state, for instance, can merely commute the death penalty into life imprisonment, not pardon and set free a convict. And in doing so, the President is not authorised to act on her/his own accord but must follow the advice of the cabinet. This idea creates the illusion that India is so uptight with morality in its public offices that it frowns upon allowing excessive wielding of authority. A closer look reveals that this is far from true.
The truth is that the higher offices in India can keep their reputations clean and yet get the job done. The power to carry out a wide range of functions is vested in various lower offices.
Parole and Furlough
Consider the authority to grant parole and furlough, both of which allow a convict to go home and have the days of absence from the prison count as part of the sentence.
Parole can be granted by officers of the state administration for family reasons, while furlough is granted by senior police officers mostly for good behaviour. Both leaves of absence from prison are governed by conditions, but the cases of favoured convicts show that the required gaps between two paroles, or the maximum duration of paroles, were easily forgotten by the administration.
One recent example is of the modern-day godman-musician Baba Ram Rahim, who, since his conviction after being found guilty of rape and murder, has been let out of prison no less than 15 times, totaling more than 250 days.
Some of his time-outs were around elections and allegedly sought to use his clout with voters in a quid-pro-quo arrangement with the ruling government in Haryana. His free runs – of which a few lasted as long as a month to 50 days – ended when the High Court asked the government not to be so generous with his paroles and seek the court’s consent.
It is a win-win for the influential convict who enjoys time at home, and his political allies who maintain their clean reputation since no one really comes to know where the orders came from. It is only through deduction that one can cobble together a theory which has little evidence.
There are many other instances of paroles being used as a favour given to certain individuals even when data shows that only a small percentage of convicts are really granted parole.
In 2021, 28,763 convicts were released on parole – which was a 17 percent decrease from 34,501 in 2017, according to Commonwealth Human Rights Initiative data.
Flawed Prosecution
Lawyers admit that prosecuting authorities often weaken the cases of people they want to favour and do not pursue it till its logical conclusion.
For instance, after a special court judgment in August 2023 in favour of casino owner and former Haryana minister Gopal Kanda, the case was dropped without an appeal against his acquittal.
Typically, the government does not drop a case until all courts of appeal are exhausted. Mr Kanda recently lost the 2024 Haryana legislative Assembly elections from Sirsa with the BJP candidate withdrawing in his favour. One can, once again, deduce that he was favoured by the BJP government in Haryana but this can only be regarded as a good guess.
The Indian justice system is misused to such an extent that the ‘deserving’ need not even be convicted if they can exit honourably during the long legal process. Advocate Arun Rathi says, “Due to unavoidable circumstances, the trials sometimes last so long that the accused gets acquitted due to a change in the circumstances. I do hope with the new criminal laws coming into force people will be able to get justice. I hope this will not be the case of an old wine in a new bottle.”
Transparency
On the other hand, the American prosecution is professional and diligent, and even when imperfect, rarely spares an individual.
Donald Trump was not prosecuted when he was in office since he enjoyed immunity, but he was, subsequently. The presidential pardon in the US, too, is carried out in full pubic glare, and is open to public scrutiny and criticism, and not done through behind-the-scenes manipulation.
So, even as the ‘most powerful man in the world’ uses his authority to pardon, sometimes benefitting people close to him, he is on the record, which is far healthier than having a system riddled with corruption and nepotism which does not record countless cases of people being let off when someone pulled a string.
The 'Indian pardon' comprises a lack of accountability in our governance, serving as a convenient way to slip through the cracks rather than a deliberate and transparent act of pardoning with its full consequences. A lawyer says, "A pardon granted in the open invites scrutiny; a favour secured in secret escapes accountability.”
That is the India our politicians and bureaucrats want to keep, a country that works for a few.
(Anupam Srivastava is a columnist. He is the author of The Brown Sahebs, a novel on India’s post-colonial transition. This is an opinion piece, and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)