GS 2 - 2025 - Pardoning power of president

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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’? (GS 2 – 2025)

Introduction

“The power to pardon is an act of grace, proceeding from the sovereign power of the state.”
The constitutional authority of the President to grant pardons in India and the USA reflects a balance between mercy and justice, but varies in scope and limitations.

Body

1. Constitutional Basis & Scope

  • India: Article 72 empowers the President to grant pardon, reprieve, respite, remission, or commutation of sentences, including death penalty.
  • USA: Article II, Section 2 gives the President power to grant reprieves and pardons for federal offences, except in cases of impeachment.
  • Key Difference: Indian President acts on aid and advice of the Council of Ministers, while the US President exercises the power independently.

2. Limits & Judicial Review

  • India: Subject to judicial review if exercised arbitrarily (e.g., Kehar Singh v. Union of India), cannot override state offences under Article 161.
  • USA: Cannot pardon state crimes or impeachments, but virtually unreviewable by courts (Ex parte Garland, 1866).
  • Data: US Presidents have issued over 20,000 pardons, Indian Presidents use it sparingly.

3. Preemptive Pardons & Contemporary Relevance

  • Preemptive Pardon: Granting pardon before formal conviction or trial.
  • USA Example: Gerald Ford pardoned Richard Nixon (Watergate).
  • India: No provision for preemptive pardon; pardon follows conviction or sentence.
  • Recent debates in USA on Trump’s potential preemptive pardons highlight its political use.

Conclusion

The pardoning power, while a tool of humanitarian justice, must balance executive discretion and rule of law to prevent misuse while upholding constitutional morality and fairness.

Additional Points

  • Judicial Pronouncements (India): Epuru Sudhakar v. Govt. of A.P. – power is subject to limited judicial review.
  • Recent Development (India): Bilkis Bano case remission controversy (2022) raised concerns on political influence.
  • Checks in India: Cabinet advice binding, ensuring collective responsibility.
  • Checks in USA: Public opinion & Congressional oversight act as political constraints.
  • Comparative Insight: UK monarch’s power is largely ceremonial, unlike the US President’s direct authority.
  • Data Point: Indian Presidents have rejected 30+ mercy petitions in last two decades.
  • Ethical Dimension: Pardons reaffirm rehabilitation and compassion, especially in cases of wrongful convictions.

More Points 

1. Historical Context

  • The concept of pardon dates back to English Royal Prerogative of Mercy, influencing both Indian and American constitutions.
  • The US Founding Fathers debated its inclusion; Alexander Hamilton in Federalist Paper No. 74 justified it as a means to ensure “tranquility of the commonwealth.”

2. Types of Clemency

  • India: Includes pardon, reprieve, remission, respite, commutation—each reducing punishment differently.
  • USA: Broader spectrum with full pardon, commutation (sentence reduction), reprieve (delay), amnesty (group pardon), and preemptive pardon.

3. Notable Case Examples

  • India: President Pratibha Patil granted clemency to 34 convicts, the highest by any Indian President.
  • USA: President Jimmy Carter issued a blanket amnesty to Vietnam War draft evaders (1977).
  • Donald Trump controversially pardoned allies like Michael Flynn and Roger Stone.

4. Federal vs. State Dynamics

  • India: President deals with Union offences, Governors under Article 161 handle State offences.
  • USA: President covers only federal offences, while State Governors have their own independent clemency powers.

5. Judicial Safeguards

  • India: Maru Ram v. Union of India (1980) held that power must be exercised on ministerial advice.
  • USA: Supreme Court in Burdick v. United States (1915) ruled that accepting a pardon implies guilt admission.

6. Political & Ethical Concerns

  • Pardons can be misused for political patronage, as seen in US “lame-duck” pardons during the last days of presidency.
  • Indian mercy petitions sometimes delay executions, raising questions of victims’ rights vs. reformation.

7. Contemporary Significance

  • Growing debates over death penalty abolition increase the relevance of pardons in India.
  • In the USA, discussions around racial bias in convictions make presidential clemency a tool for corrective justice.

8. Data & Trends

  • India: Only a few dozen mercy petitions are filed annually; a backlog often leads to years of delay.
  • USA: Between 1900–2020, over 21,000 pardons/commutations were granted; President Obama granted 1,927 clemencies, the most since Truman.

9. Comparative Learning

  • Indian model ensures collective executive responsibility, limiting individual misuse.
  • US model provides swift executive action, but risks unchecked political favoritism.

10. International Parallel

  • France: President’s pardon power is largely ceremonial.
  • South Africa: Constitutionally empowers the President, but requires consultation with the Justice Minister, similar to India’s advisory model.

These points provide a holistic understanding of the constitutional, political, ethical, and global dimensions of the pardoning power in India and the USA.

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