Model Answer
0 min readIntroduction
The power to grant pardons is a crucial executive function vested in the heads of state in both India and the United States, serving as a vital mechanism for mercy and a check on potential judicial errors. While both Presidents possess this significant authority, its scope, exercise, and limitations are fundamentally shaped by their respective constitutional frameworks – India operating under a parliamentary system and the USA a presidential one. This power reflects a blend of justice and compassion, aiming to mitigate severe punishments or rectify perceived injustices, though its application varies distinctly across these two largest democracies.
Comparison of Pardoning Power: India vs. USA
The President's power to pardon, though similar in intent, differs significantly in its operational aspects in India and the USA:
| Aspect | President of India (Article 72) | President of USA (Article II, Section 2) |
|---|---|---|
| Constitutional Basis | Article 72 of the Indian Constitution. | Article II, Section 2 of the US Constitution. |
| Nature of Power | Exercised on the aid and advice of the Council of Ministers (Maru Ram v. Union of India, 1980). Limited discretion. | Independent and discretionary power, largely unchecked by other branches. Considered "plenary." |
| Scope of Offences | Applies to: offences against Union laws, court-martial sentences, and death sentences (including those by states). Can pardon both Union and state offences in death penalty cases. | Applies only to federal crimes. Cannot pardon state crimes. |
| Judicial Review | Subject to limited judicial review on grounds of arbitrariness, mala fide intention, or irrelevant considerations (Kehar Singh v. Union of India, 1988). | Generally not subject to judicial review, as courts cannot overturn pardons. Congress cannot stop them. |
| Types of Clemency | Pardon, Commutation, Remission, Respite, Reprieve. | Reprieves and Pardons (encompasses commutations, amnesties). |
Limits to Pardoning Power in India
- Ministerial Advice: The President is bound by the advice of the Union Council of Ministers. While the President can ask the Council of Ministers to reconsider their advice once, if the Council reiterates the same advice, the President must act in accordance with it (Article 74(1)).
- Judicial Review: Although the power is executive, the Supreme Court has held that it is subject to limited judicial review to prevent arbitrariness, mala fide exercise, or decisions based on irrelevant considerations.
- Not a Court of Appeal: The President does not act as a court of appeal and cannot re-evaluate the evidence in a criminal case. The review is generally concerned with procedural fairness.
- No Self-Pardon: The Indian Constitution does not explicitly address self-pardons, but the parliamentary structure and the requirement of ministerial advice make a self-pardon practically impossible.
Limits to Pardoning Power in the USA
- Federal Offences Only: The President can only grant pardons for federal crimes; state crimes fall under the clemency powers of state governors.
- Cases of Impeachment: The pardon power explicitly does not extend to "cases of impeachment." This means the President cannot pardon someone to prevent impeachment or reverse an impeachment conviction.
- Future Crimes: A pardon cannot be issued for crimes not yet committed. It only applies to offenses that have already occurred.
- Acceptance Required: For a pardon to be effective, it must be accepted by the individual. A pardon cannot be forced upon someone, especially if it would infringe upon their constitutional rights (Burdick v. United States, 1915).
- No Self-Pardon (Debated): While not explicitly prohibited, the constitutionality of a presidential self-pardon is highly debated among legal scholars and has never been tested by the Supreme Court.
'Preemptive Pardons'
A 'preemptive pardon' is an act of clemency issued by a head of state before charges are formally brought against an individual, or even before an investigation is complete or a conviction obtained. It essentially clears an individual of potential charges related to past acts.
- In the USA: Preemptive pardons are legally recognized and have historical precedents. The US Supreme Court, in Ex Parte Garland (1866), interpreted the President's pardon power broadly to include offenses for which legal proceedings have not been initiated. A notable example is President Gerald Ford's pardon of Richard Nixon for any crimes he might have committed during the Watergate scandal. This is possible due to the plenary nature of the US President's pardon power.
- In India: Preemptive pardons are generally not permitted. Article 72 states that the President can pardon a person "who has been tried and convicted of any offence." This constitutional language implies that a formal legal process and conviction must precede the exercise of the pardoning power. Therefore, the Indian President cannot issue a pardon for an offense that has not yet resulted in a conviction.
Conclusion
The power of pardon, inherent in the executive branches of both India and the USA, serves as a crucial component of their justice systems, allowing for mercy and the rectification of judicial errors. However, their operational mechanics are fundamentally divergent, reflecting the distinct constitutional philosophies of a parliamentary democracy and a presidential republic. While the Indian President acts on binding ministerial advice and exercises limited discretion subject to judicial review, the US President wields a largely independent and plenary power. The concept of 'preemptive pardons' further underscores this difference, being a recognized feature in the US but generally absent in the Indian framework due to specific constitutional wording. These variations highlight the unique checks and balances designed within each nation's governance structure.
Answer Length
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