UPSC Mains — Previous Year Question
Question
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’?
Model Answer
The pardoning power of the executive provides an ultimate check to correct judicial errors and grant clemency on humanitarian grounds, operating under distinct constitutional frameworks in India and the United States.
Comparative Matrix: India vs. USA
| Dimension | President of India (Article 72) | President of the USA (Article II, Section 2) |
|---|---|---|
| Constitutional Authority | Vested under Article 72; exercised on the aid and advice of the Council of Ministers (Article 74). | Vested under Article II, Section 2; an independent, personal presidential prerogative. |
| Scope of Offenses | Offenses against Union laws, Court-martial convictions, and all sentences of death. | Offenses against federal laws only; no authority over state-level offenses. |
| Forms of Clemency | Pardon, commutation, remission, respite, and reprieve. | Pardon, commutation, conditional pardon, and reprieve. |
| Death Sentence Review | Applies to all death sentences nationwide (parallel state powers exist under Article 161 for Governors). | Applies only to federal death sentences; state death sentences fall under State Governors. |
| Impeachment Exclusion | Cannot be used to shield against constitutional removal. | Expressly barred from being granted in cases of impeachment. |
| Judicial Review | Subject to limited judicial review on grounds of arbitrariness, mala fides, or non-application of mind (Epuru Sudhakar case). | Generally non-justiciable; courts do not review presidential motives or merits. |
Constitutional Limitations in Both Systems
- Limits in India: The President does not act in personal discretion; cabinet advice is binding. Orders remain subject to judicial review against extraneous considerations, and powers cannot infringe on federal balance where Governors hold primary state jurisdiction under Article 161.
- Limits in the USA: Limited strictly to federal crimes; cannot grant clemency for state-law convictions. Cannot be used to stop or undo Congressional impeachment proceedings.
Concept of ‘Preemptive Pardons’
- Definition: A preemptive pardon is granted to an individual before an indictment, formal criminal charge, trial, or conviction has taken place.
- Practice in the USA: Constitutionally recognized and historically exercised. A prominent precedent is President Gerald Ford’s 1974 unconditional pardon of Richard Nixon for any federal offenses he “committed or may have committed” during the Watergate scandal.
- Position in India: Not practiced. Clemency in India is considered only after a conviction and final sentence have been handed down by the judiciary. Granting a pre-trial executive pardon would bypass due process and violate the separation of powers.
While the US model emphasizes broad executive discretion, India’s constitutional framework ensures that executive clemency operates through institutional advice and judicial review.