QUES . 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’? Answer in 150 words.10 marks. UPSC MAINS 2025 GS PAPER 2
HINTS:
A pardon is an act of mercy, forgiveness and clemency. The power of the executive to pardon is one that widely exists around the world. President’s power to pardon also exists in India and in the USA but they differ in scope, independence and process.
Comparison of the President’s power to pardon in India and in USA
1 . Constitutional Basis
USA: Article II, Section 2, Clause 1 of the U.S. Constitution grants the President the power to issue pardons.
India: Article 72 of the Indian Constitution.
2 . Scope
USA: The President can pardon crimes under federal law but not offenses under state laws. Does not erase the criminal record but relieves penalties and restores specific rights. That is a pardon nullifies punishment but does not overturn convictions. The President’s authority does not extend to impeachment cases.
India: President can grant pardons to persons who have been tried and convicted of any offence in all cases where the: (1) Sentence is a sentence of death. (2) Punishment or sentence is for an offence against a Union Law (3) Punishment or sentence is by a court martial (military court).
3 . Independence
USA: The President exercises clemency independently. President exercises authority unilaterally without needing Congressional approval. Clemency is a broad executive power, and is discretionary- meaning the President is not answerable for his pardons, and does not have to provide a reason for issuing one.
India: Based on advice from the Council of Ministers.
4 . Death Sentences
USA: State governors may pardon death sentences for state crimes.
India: Only the President can pardon death sentences and not the state governors.
5 . Governors’ Role
USA: Can pardon state crimes
India: Limited to state crimes, excluding death sentences (Article 161).
6 . Process
USA: The Department of Justice’s Office of the Pardon Attorney processes pardon petitions, conducting initial reviews and FBI background checks. The office makes non-binding recommendations to the President, who has the final authority.
India: President follows ministerial advice under Article 74.
7 . Judicial review
USA: Courts have no power to question pardons. In Ex parte Garland (1866), the Supreme Court of USA held that pardons are not reviewable.
India: Pardoning power can be judicially reviewed on grounds of being arbitrary, irrational, mala fide or discriminatory. Supreme Court of India in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
Limits on President’s Power to Pardon in India and in USA
Limits on President’s Power to Pardon in USA
The President can only pardon “Offences against the United States”, which refers to offences under federal law (applicable in multiple states and investigated by federal agencies such as the FBI). The President cannot pardon an action that is an offence under the law of a specific state. Also the President cannot grant pardons in cases of impeachment.
Limits on President’s Power to Pardon in India
The President must act in accordance with the advice of the Council of Ministers. President’s power to pardon is subject to judicial review if mala fide. The power to pardon cannot be exercised before conviction of the person.
What are ‘preemptive pardons’?
A preemptive pardon is an act of clemency issued by a head of state or government before charges are formally brought against an individual.
Preemptive Pardons in USA
The legal authority for preemptive pardons in the United States is rooted in the Constitution and clarified through key judicial precedents. Article II, Section 2 of the U.S. Constitution grants the president the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This broad language has been interpreted to allow for pardons at any stage of the judicial process, including before charges are formally brought—a concept known as a preemptive pardon.
The Supreme Court’s decision in Ex Parte Garland (1866) is central to understanding the scope of this power. In this case, the Court unequivocally stated:
“The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.”
Can President of India grant preemptive pardons?
President of India cannot grant preemptive pardons, as a pardon can only be granted after a crime has been committed and is typically considered at any stage after the commission of the offense, including before or after conviction, and during the pendency of an appeal. The concept of a “preemptive pardon” for someone not yet accused or convicted of a crime is a feature of the U.S. system and not applicable in India.
Conclusion
The power of pardoning offenders has been a privilege enjoyed by the Sovereigns around the world since time immemorial. In India and the United States, the power to pardon is an essential aspect of the President’s authority, albeit with variations in its scope, application, and limitations.
