GS Paper 2 10 marks · 150w 9 min Medium

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’?

Subtopic: Constitution & Polity · comparative pardoning power of the executive

Model answer outline

How to structure your answer

Introduction (pardon as an executive check on judicial finality) → India's Articles 72 and 161 → USA's Article II Section 2 → compare scope and limits in both → explain 'preemptive pardons' → Conclusion (rule of law and accountability)

Full model answer

Detailed model answer

202 words · target 150 words · 9 min

The Pardoning Power

In India the President's pardoning power flows from Article 72 and the Governor's from Article 161; in the USA it flows from Article II, Section 2 of the Constitution. Both allow the executive to grant pardons, reprieves, respites and remissions, acting as a mercy check on judicial finality.

Comparison

Scope: The Indian President can pardon in all cases involving Union law, court-martial sentences and every death sentence. The US President's power covers only federal offences, not state crimes.
Discretion: The US President exercises the power personally and almost unilaterally. The Indian President acts only on the aid and advice of the Council of Ministers (Maru Ram, 1980).

Limits in both countries

India: The power is subject to limited judicial review for mala fide, arbitrariness or irrelevant considerations (Epuru Sudhakar v. State of A.P., 2006). A Governor under Article 161 cannot pardon death sentences or court-martial cases.
USA: The pardon cannot be used in cases of impeachment and does not reach state offences, but is otherwise nearly unreviewable (Ex parte Garland).

Preemptive Pardons

A 'preemptive pardon' is granted before any formal charge or conviction, insulating a person from future prosecution — as with President Ford's 1974 pardon of Nixon. India has no such concept: Article 72 operates only after conviction and sentence.

Key points

What an examiner expects to see

India: President's pardon under Article 72, Governor's under Article 161; USA: President's pardon under Article II, Section 2.
Indian President's reach is wider in one sense — covers court-martial and all death sentences; US power is confined to federal, not state, offences.
Indian pardon is exercised on ministerial aid and advice (Maru Ram, 1980); the US pardon is a personal, largely unilateral presidential act.
Indian pardon is subject to limited judicial review — mala fide, arbitrariness, irrelevant grounds (Epuru Sudhakar v. State of A.P., 2006).
US pardon cannot be used in impeachment cases and does not cover state crimes, but is otherwise near-unreviewable (Ex parte Garland).
Governor under Article 161 cannot pardon a death sentence or a court-martial punishment, unlike the President.
'Preemptive pardon' = pardon before charge/conviction (e.g. Ford pardoning Nixon, 1974); India permits pardon only post-conviction.

Examples to use

Concrete cases, schemes and judgments

Maru Ram v. Union of India (1980) — pardon exercised on aid and advice of Council of Ministers
Epuru Sudhakar v. State of Andhra Pradesh (2006) — grounds for judicial review of pardons
Kehar Singh v. Union of India (1989) — nature and scope of Article 72
President Gerald Ford's preemptive pardon of Richard Nixon (1974)
Ex parte Garland (US, 1867) — breadth of the presidential pardon

Keywords / terms

Terminology to weave into the answer

Article 72 and 161Article II Section 2aid and advicejudicial review of clemencypreemptive pardonimpeachment exception