Q 3. 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’? (UPSC 2024, 10 Marks, 150 Words)

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The President of India exercises the power to pardon under Article 72, while the U.S. President does so under Article II, Section 2 of the Constitution. In India, this power is subject to judicial review, whereas in the USA, it is largely unchecked. Preemptive pardons allow the U.S. President to pardon individuals before charges are filed. Legal scholar Alexander Hamilton emphasized the necessity of this power for justice and mercy, highlighting its potential for abuse.

Comparison of Pardon Powers

Aspects	President’s Power to Pardon in India	President’s Power to Pardon in the USA
Constitutional Provision	Article 72 of the Indian Constitution	Article II, Section 2 of the U.S. Constitution
Scope	Can pardon, reprieve, remit, or commute sentences for offenses against Union law	Can grant reprieves and pardons for offenses against the U.S., except in cases of impeachment
Advisory Role	Acts on the advice of the Council of Ministers	Acts independently, without needing advice
Judicial Review	Subject to limited judicial review	Generally not subject to judicial review
State Offenses	Cannot pardon state offenses; only the Governor can	Cannot pardon state offenses; only state governors can
Preemptive Pardons	Not explicitly mentioned, but theoretically possible	Explicitly possible; can pardon before conviction (e.g., Gerald Ford pardoning Richard Nixon)
Examples	Kehar Singh case (1989) - President denied pardon	Gerald Ford pardoning Richard Nixon (1974)
Limitations	Limited by the advice of the Council of Ministers and judicial review	Limited by the exception of impeachment and political consequences

Limits to Pardon Powers

 ● Constitutional Basis:  
        ○ In India, the President's power to pardon is enshrined in Article 72 of the Constitution. This power extends to granting pardons, reprieves, respites, or remissions of punishment under certain circumstances, such as in cases involving the death penalty.
        ○ In the USA, the President's power to pardon is derived from Article II, Section 2 of the Constitution. This power allows the President to grant pardons and reprieves for offenses against the United States, except in cases of impeachment.
  ● Scope and Limitations:  
        ○ In India, the President exercises this power on the advice of the Council of Ministers, which means it is not an absolute power. The Supreme Court of India has the authority to review the exercise of this power if it is found to be arbitrary or discriminatory.
        ○ In the USA, the President has broad discretion in granting pardons, and this power is not subject to judicial review. However, it cannot be used to interfere with impeachment proceedings.
  ● Preemptive Pardons:  
    ● Preemptive pardons refer to the granting of a pardon before any formal charges or convictions have been made.  
        ○ In the USA, preemptive pardons are constitutionally permissible, as demonstrated by President Gerald Ford's pardon of Richard Nixon before any charges were filed.
        ○ In India, the concept of preemptive pardons is not explicitly recognized, and the President typically acts after a conviction.
  ● Examples and Implications:  
        ○ In India, the President's power to pardon has been exercised in high-profile cases, such as the commutation of death sentences. However, the process is often lengthy and subject to political considerations.
        ○ In the USA, the power has been used controversially, such as President Trump's pardons of political allies. The broad nature of this power can lead to debates about its potential misuse and the need for checks and balances.

Preemptive Pardons

 ● Definition and Context:  
    ● Preemptive Pardons refer to the act of granting a pardon before any formal charges or conviction have occurred. This concept is more prevalent in the context of the United States, where the President has the constitutional authority to issue pardons for federal offenses.  
        ○ In India, the President's power to pardon is exercised under Article 72 of the Constitution, but the concept of preemptive pardons is not explicitly recognized or practiced.
  ● Legal Framework in the USA:  
        ○ The U.S. Constitution grants the President the power to pardon offenses against the United States, except in cases of impeachment. This power is broad and includes the ability to issue preemptive pardons.
        ○ A notable example is President Gerald Ford's pardon of Richard Nixon in 1974, which was issued before any formal charges were brought against Nixon following the Watergate scandal.
  ● Legal Framework in India:  
        ○ In India, the President can grant pardons, reprieves, respites, or remissions of punishment under Article 72. However, this power is typically exercised post-conviction and does not include preemptive pardons.
        ○ The Indian legal system emphasizes the completion of judicial processes before the exercise of clemency powers, ensuring that pardons are granted based on established legal findings.
  ● Limitations and Criticisms:  
        ○ In the USA, while the President's pardon power is extensive, it is subject to political and public scrutiny. Preemptive pardons can be controversial, as they may be perceived as undermining the judicial process.
        ○ In India, the absence of preemptive pardons aligns with the principle of judicial review and accountability, ensuring that executive clemency is exercised with due regard to legal proceedings and public interest.

In both India and the USA, the President holds the power to pardon, but with distinct limitations. In India, the President acts on the advice of the Council of Ministers, while in the USA, the President exercises this power independently. Both countries lack explicit constitutional limits, but judicial review can apply. Preemptive pardons are issued before conviction. As Alexander Hamilton noted, pardons can be a tool for "tranquility of the commonwealth," emphasizing their role in justice and mercy.