Mains Focus – 24th Sept 2025
Question
Compare and contrast the President’s power to pardon in India and in the USA. Are there any limits to it in both countries? What are preemptive pardons? [UPSC 2025 GS -2, 15 marks]
Answer
The pardoning power is an important constitutional tool for correcting judicial errors and upholding justice.
In India, Article 72 empowers the President to grant pardon, reprieve, respite, remission, suspension, or commutation of punishment in:
- All cases where the punishment is by a court‐martial,
- Offences against Union law,
- Death sentence cases.
The President acts on the aid and advice of the Council of Ministers (Article 74); hence the power is not discretionary. Judicial review is limited to examining mala fides or non-application of mind.
In the USA, Article II, Section 2 of the Constitution gives the President the power to grant reprieves and pardons for federal offences except in cases of impeachment. The U.S. President exercises this power independently, without Cabinet advice or legislative oversight. The power is broad and extends even before trial or conviction. Courts generally cannot review a presidential pardon.
Limits
- India: Cannot pardon state offences; bound by ministerial advice; subject to limited judicial review.
- USA: Cannot pardon state crimes or impeachment, but otherwise virtually unrestricted and not reviewable by courts.
Preemptive Pardons
These are pardons granted before a person is formally charged or convicted, shielding them from prosecution for specified acts. In India, such pardons are not recognized, while in the USA, they are valid (e.g., President Gerald Ford’s 1974 pardon of Richard Nixon).
Thus, the U.S. President enjoys a wider and more discretionary pardoning power compared to the Indian President’s limited and advised authority.
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