Q3. Compare and contrast the President’s power to pardon in India and in the USA. Are there any limits to it in both the countries? What are preemptive pardons?
Possible Introductions
Definition-based:
The power of pardon is an executive power that allows the Head of State to reduce or nullify punishments, reflecting the principles of justice, mercy, and public welfare.
Philosophical:
As Justice Holmes remarked, “A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws.” This power differs significantly in India and the USA due to their constitutional frameworks.
Contextual:
While India vests clemency powers in the President (Article 72) and Governors (Article 161), the USA vests this power exclusively in the President (Article II, Section 2 of the US Constitution).
Main Body
1. Pardoning Power in India (Article 72)
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- The President can grant Pardon, Reprieve, Respite, Remission, Commute in cases:
- Punishment by Union law.
- Court Martial cases.
- Death sentences (exclusive to President, though Governor can suspend/commute).
- The President acts on aid and advice of Council of Ministers (Maru Ram v. Union of India, 1980; Kehar Singh v. Union of India, 1989).
- Governor’s power (Art. 161): Limited to state laws, not applicable to death sentences.
- The President can grant Pardon, Reprieve, Respite, Remission, Commute in cases:
2. Pardoning Power in the USA
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- US President has exclusive power to grant reprieves and pardons for federal offences (except impeachment).
- It is a personal prerogative of the President, not subject to cabinet advice.
- Judicial review is extremely limited — US Supreme Court in Ex parte Garland (1866) upheld very wide discretion.
3. Comparison – India vs USA
| Aspect | India (Art. 72) | USA (Art. II, Sec. 2) |
|---|---|---|
| Scope | Union laws, court martial, death sentences | Federal offences, except impeachment |
| Aid & Advice | President bound by Council of Ministers | President acts independently |
| Governor’s Role | Governors also exercise under Art. 161 | No equivalent — only President |
| Judicial Review | Subject to limited review (Epuru Sudhakar v. AP, 2006 – mala fide, arbitrariness) | Almost immune from judicial review |
| Checks | Parliamentary & judicial oversight | Political check (Congress, impeachment), no legal checks |
4. Limits to Pardoning Power
India:
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- Bound by ministerial advice.
- Cannot act arbitrarily (Epuru Sudhakar, 2006).
- Limited to offences under Union law.
- Subject to rule of law and judicial review.
USA:
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- Cannot be used for impeachment cases.
- Applies only to federal crimes, not state crimes.
- Political limits: excessive/controversial pardons can lead to public backlash or impeachment threats.
5. Preemptive Pardons
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- A preemptive pardon is issued before conviction or even before trial, forgiving possible crimes committed.
- USA Example: Gerald Ford’s 1974 preemptive pardon of former President Richard Nixon (Watergate scandal).
- India: Preemptive pardons are not explicitly recognized — power usually exercised post-conviction/sentencing.
Possible Conclusions
Balanced:
Both India and the USA recognize pardoning as a necessary “safety valve” in justice, but India restricts it through constitutional advice and judicial review, while the US President enjoys near-absolute discretion.
Philosophical:
The difference reflects the parliamentary system in India (collective responsibility) versus the presidential system in the USA (individual discretion).
Policy-linked:
In India, recent debates on mercy petitions (e.g., Rajiv Gandhi assassination case convicts) show the importance of transparency and guidelines in pardoning powers.
Forward-looking:
Pardoning powers should balance mercy with accountability, ensuring that they serve justice and not political convenience.
