UPSC Mains 2025 GS Paper 2 Question Paper
Q. 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’?
Introduction:
The power of pardon is a constitutional device to temper justice with mercy, vested in the executive under **Constitution of India and Constitution of the United States.
President’s Power to Pardon – India vs USA
| Aspect | India | USA |
| Constitutional provision | Article 72 of Constitution of India | Article II, Section 2 of United States Constitution |
| Scope | Pardon, reprieve, respite, remission, commutation | Pardon and commutation mainly |
| Nature of executive | President acts on aid and advice of Council of Ministers | President exercises personal executive discretion |
| Jurisdiction | Court-martial cases, Union law offences, death sentence cases | Federal offences only |
| State role | Governors have similar power under Article 161 | No equivalent state role for federal offences |
Limits on the Power
India
- Not absolute; subject to judicial review by Supreme Court of India.
- Court can intervene if decision is:
- Arbitrary / mala fide
- Based on irrelevant considerations.
- Key cases:
- Maru Ram v. Union of India (1981) – President bound by ministerial advice.
- Kehar Singh v. Union of India (1989) – judicial review limited but permissible.
- Epuru Sudhakar v. Government of Andhra Pradesh (2006) – pardon cannot be arbitrary.
USA
- Broad and largely unchecked executive power.
- Limits include:
- Applies only to federal offences.
- Cannot be used in impeachment cases.
- Interpreted in Ex parte Garland (1866), where the US Supreme Court recognised wide presidential discretion.
Pre-emptive Pardons
- Definition:
Pardons granted before conviction or even before formal charges. - Permitted in USA due to wide constitutional wording.
- Famous example:
- Gerald Ford pardoned Richard Nixon (1974) after the Watergate Scandal, before prosecution.
- India:
Pre-emptive pardons are not practised, as the power is generally exercised after judicial conviction and within a structured legal framework.
Conclusion:
While both India and the USA recognise the pardon power as a humanitarian constitutional safeguard, India subjects it to judicial review and ministerial advice, whereas the US President enjoys broader discretionary authority including pre-emptive pardons.
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