Pardon the pardon, blood is thicker than water

Roving Reflections

E M Forster said, famously: “If I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country.” The author of acclaimed works, notably A Passage to India, did not say what he would choose between his country and his son.

Meanwhile, Joe Biden’s take on the matter is out. After repeatedly asserting in public that he will not pardon his son Hunter Biden – convicted of gun ownership and tax evasion charges that could invite fine or imprisonment of many years, or both – and that he will respect the judicial process, the US president did a turnaround by invoking his extraordinary powers of executive clemency. Biden defended the presidential pardon by saying he believed that “raw politics had infected the process and had led to a miscarriage of justice.” Clearly, he did not honour his own commitment or repose faith in the judicial system. Ironically, he validated the charges of former president Donald Trump, who was convicted as a felon, that he was the victim of a political witch-hunt and the justice system was skewed.

What Biden did is understandable and can even be viewed with sympathy, but is it condonable? Trump, during his first term, pardoned Charles Kushner, father of his son-in-law Jared Kushner, who was in prison for two years on tax evasion and other charges. Now, as president-elect, Trump has nominated Kushner as Ambassador of France.

It is to be noted that Trump’s predecessors had no qualms either, in granting clemency to confidantes, colleagues in government, friends, and cronies. Bill Clinton pardoned his half-brother Roger on old drug charges. Biden has given ample ammunition to Trump to carry out his threats to use the justice department and other agencies like the FBI to target those who opposed him. He has already nominated to the post of FBI Director Kash Patel, an Indian-origin lawyer and a fierce loyalist who has declared that he will go after enemies of Trump.

Providentially for us, the founding fathers of India, with great foresight and wisdom left us a constitution drafted by that brilliant and prescient lawyer and statesman Dr B R Ambedkar. Knowing the weaknesses and temptations of mortals, especially those who wield power, he did not provide for such unchecked sweeping powers, either to the Prime Minister or the President of the young Republic. When the constitution was finally adopted, it had built in enough safeguards so that no Prime Minister abuses his or her powers to pardon a convicted felon who is family or an ally. An exception was made – to the guidelines for clemency in extreme cases of death penalties and commutation of sentences, awarded after due process of law by the President. Clemencies have their origins in monarchies and are still prevalent in countries ruled by kings and emperors.

Former US president Ronald Reagan said: “Politics is the second oldest profession, it bears a striking resemblance to the first”. Despite the checks and balances that are in place, our leaders have found ways to undermine the spirit of the constitution over the years since independence. The Emergency imposed by former prime minister Indira Gandhi in 1975 is a stark reminder of the excesses of undemocratic state action. Influential political leaders have continued to nominate and appoint members of their families, and allies with criminal records to positions of power, allowing them to ride roughshod over democracy.

President-elect Trump has vowed to use the Attorney General and the FBI towards his political ends. Closer home, there have been calls to law officers such as Attorney Generals and Solicitor Generals to remain distanced from the politics of the day. Investigating agencies have often been found to be serving political masters.

We have also had an unsavoury precedent of a sitting Supreme Court Chief Justice trying his own case, desecrating the cardinal rule of jurisprudence. Groups with political interests attempting to influence and undermine the judiciary have set off serious concerns in India’s judicial landscape.

It is always a good time to remember Ambedkar’s warning, made in his last speech to the Constituent Assembly – “Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.”