Question Q.14Differentiate, examineGS2GS2

Differentiate between the clemency powers of the Presidents of India and the USA. Also, critically examine the vesting of clemency power in the executive.

Introduction

The clemency power to the Indian President is bestowed under Article 72 of the constitution. Rape is one of the top four crimes against women in India. (NCRB Report). Among the registered cases, more 30% of the accused are known relatives of the victims.

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Main Body

Clemency Powers of the Presidents

Indian President | American President

1Powers extend to offences against union, death sentence against union and state laws. | (1) Powers extend to offences only against the union laws and not the federal laws.

2Judicial review extends only to the arbitrariness of the President's decision and malafide. | (2) Judicial review has a wider connotation based on the doctrine of judicial supremacy.

3The judiciary is not mandated to codify guidelines for President | (3) Judicial guidelines do not restrict to guide the

to exercise his power. President exercises independence under Article 72. | President's conduct.

Clemency power with the executive

1Benefits

1Establishes the principle of checks and balances among the executive, judiciary.

2Provides for remedial of judicial errors, pardoning of sentences that the President considers unduly harsh.

3It embodies the principle that justice hurried is justice buried -> Provides for appeal against judicial sentences that the accused considers unduly hard.

4Provides for re-interpretation of gathered evidence in a new light.

2Concerns

1Threatens the principle of seperation of powers and independence of judiciary.

2Potential for misuse by ardent criminals. Eg: Petitions for pardoning in the Nirbhaya case.

3Accused centric provision, subversion of victim centricism. (Article 14)

4Delay in decision by President amounts to mental torture of criminals -> Threat to right to life (Article 21)

5Justice process delayed -> "Justice delayed is justice denied"

Marital rape as well precipitates to the concept of consent even under the institution of marriage. Lack of consent even in marriage might amount to violation of freedom of choice (Article 21) and equality (Article 14).

Criminalisation of marital rape

1Arguments in support

1Establishes the equality before law, equal protection of law (Article 14) -> Rape victims are situated similarly

irrespective of relations with the accused.

2Protection of right to life and personal liberty (Article 21)

3Provides legal protection to women's dignity beyond domestic violence in personal life.

4Exclusion from penalisation leads to perpetuation of loopholes in the law.

5Leads to silent acceptance of exploitation by the victims.

2Arguments against

1Potential of misuse and exploitation of legal safeguards against innocents.

2Codification of consent in personal space is difficult.

3Provisions for conditions that amount to marital rape are ambiguous -> Difficulty in deciding on the criteria defining marital rape.

4Complication in the investigation of the crime.

5Reluctance amongst victims to report crime against marital partners.

6Difficulty in handling of gender sensitive issues that are extremely personal.

7Penalisation of consensual relations.

Way Forward

1Exclusive jurisdiction to family courts regarding matters of marital rape.

2Maintainance of right to privacy during trial of cases.

3Legal safeguards regarding filing of cases by victim.

4Codification of important criteria for crime, and SOP for investigation.

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Conclusion

The Shatrughan Chauhan case suggestions of 14 days prior notice before execution of death penalty is a golden mean in case of pardoning powers. They maintain a unique mixture of accountability through checks and balances. Criminalisation of marital rape is a need of the hour just like the abolition of Triple Talaq was. A proactive approach to achieve gender equality is necessary.

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checks and balances
remedial of judicial errors
equality before law

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Page 30

Topper

Ankita Anil Patil

AIR 1402025

Subject & Paper

GS2GS2

Topic

Comparison of Indian Constitutional Scheme with Other Countries

Comparison - President's Pardoning Power

Clemency Powers - India vs USA

Writing Stats

584

Total words

Paragraphs

analytical

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