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)

Q No. 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? (Answer in 150 words)

Approach:

Intro – State constitutional basis: Article 72 (India) & Article II, Sec 2 (US).
Comparison Table – Jurisdiction, discretion, binding advice, judicial review, exceptions, effect of pardon.
Limits – India: judicial review, bound by Council of Ministers. USA: cannot pardon state crimes/impeachment.
Pre-emptive Pardons – Explain meaning; valid in USA (Ex parte Garland, 1866); not recognized in India (post-conviction only).
Conclusion – India: institutional checks; USA: wide presidential discretion.

Model Answer

Article 72 of the Indian Constitution and Article II, Section 2 of the US Constitution empower the President with pardoning powers. Though both stem from the idea of mercy and justice, they differ significantly in scope, discretion, and judicial oversight, reflecting the structural differences between a parliamentary and presidential system.

Difference between pardoning powers of Indian & US President

Aspect	President of India	President of USA
Constitutional Provision	Article 72 of the Indian Constitution	Article II, Section 2 of the U.S. Constitution.
Jurisdiction	Applies to: Laws enacted by the Indian Parliament. Death sentences under State Laws. Punishments by courts-martial (military courts)	Limited to federal laws; cannot pardon state offenses or intervene in state criminal matters.
Exceptions	None explicitly mentioned; subject to judicial review for arbitrariness (as per Supreme Court rulings).	Cannot pardon in cases of impeachment.
Judicial Review	Pardoning power is subject to judicial review for arbitrariness or mala fides.(Epuru Sudhakar case, 2006).	Generally not subject to judicial review; very limited exceptions apply (e.g., if used to obstruct justice).
Effect of Pardon	Completely absolves the individual from conviction, punishment, and all disqualifications.	Relieves punishment and associated disqualifications but does not erase the conviction record.
Purpose/Philosophy	Humanitarian grounds, correcting miscarriage of justice, reducing harshness of law	Broad executive prerogative, seen as a check on judiciary
Stage	Only post-conviction (after judicial determination of guilt).	Pre-emptive pardons allowed – can pardon even before trial/conviction

Limits to Pardoning Powers

Aspect	President of India	President of USA
Binding Advice	Must act on the advice of the Council of Ministers (not discretionary).	Fully discretionary; the President decides unilaterally.
Impeachment	Not explicitly mentioned, but cannot be used to nullify constitutional removal mechanisms like impeachment.	Explicit exception: cannot pardon in cases of impeachment.
Nature of Power	Controlled & limited, constitutionally bound, quasi-judicial.	Broad & nearly absolute, discretionary, political

Pre-emptive Pardon

A pre-emptive pardon is a pardon granted before a person is convicted, charged, or even tried for an offence.
It shields an individual from future prosecution for specific acts committed in the past.
It is based on the logic that the executive power of clemency is not limited only to those already punished, but also to prevent punishment altogether.

Legal Basis

United States:
- US Supreme Court upheld that the President’s pardon power “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.:” This makes pre-emptive pardons constitutionally valid in the U.S.
India:
- The Indian President’s power under Article 72 is generally understood to operate after conviction and sentencing.
- The Supreme Court in Kehar Singh v. Union of India (1989) and Maru Ram v. Union of India (1980) clarified that the power of pardon follows conviction; it cannot be used to short-circuit trial or judicial process.
- Hence, pre-emptive pardons are not recognized in India — they come into play only after a conviction/sentence.

Thus, while both India and the USA recognise the need for mercy in justice, the US model vests sweeping discretion in the President, including pre-emptive pardons, whereas India places institutional checks by binding the President to ministerial advice and judicial scrutiny.