President’s Power to Pardon: A Comparative Analysis of the United States and India

President’s Power to Pardon: A Comparative Analysis of the United States and India

The power to pardon is one of the most significant privileges granted to the executive heads of both the United States and India. It allows them to exercise clemency and forgiveness in the judicial system. This article explores the origins, constitutional provisions, and limitations of the power to pardon in the United States and India, delving into how each country defines and applies this executive authority.

What is the Power to Pardon and Why Does It Exist?

The power to pardon is an executive privilege enabling the mitigation or elimination of penalties for those convicted of crimes. Rooted in the concept of justice tempered with mercy, it serves multiple purposes:

• Correcting judicial errors.
• Offering rehabilitation opportunities.
• Serving as a tool for reconciliation, particularly during or after conflicts.

While the intent is noble, the exercise of pardon power can spark debate about its scope and misuse. Understanding how this power operates constitutionally in the United States and India is critical to appreciating its role in governance.

What Are the Constitutional Provisions for Pardons in the United States?

The US Constitution explicitly grants the President the power to pardon under Article II, Section 2, Clause 1, which states:
"The President shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Key Features of the US Pardon Power

Federal Offences Only: The pardon power applies exclusively to crimes under federal jurisdiction. Offences under state laws remain outside the President's purview.

Exclusion of Impeachment: Pardons cannot nullify impeachment proceedings or their consequences.

Pre-Conviction and Post-Conviction Pardons: The Supreme Court clarified in Ex Parte Garland (1866) that the President may issue pardons before formal charges, during trials, or after convictions.

How Does the Pardon Process Work in the US?

The Office of the Pardon Attorney, under the Department of Justice, assists the President in reviewing applications for clemency. While the President has the authority to pardon without recommendations, a typical process involves:

• Submission of a petition five years after release from custody.
• An FBI background check.
• A final recommendation by the Department of Justice, though non-binding.

However, Presidents have frequently bypassed this process, using their discretion to issue politically charged or high-profile pardons.

What Are the Limitations of the President’s Pardon Power in the US?

Federal Jurisdiction: The President cannot pardon crimes prosecuted under state laws. For example, state governors have equivalent powers within their jurisdiction.

Impeachment: This is explicitly excluded under Article II, meaning no President can overturn impeachment by Congress.

No Immunity for Future Crimes: Pardons can only address crimes already committed. While preemptive pardons for past crimes before charges are permissible (e.g., President Ford’s pardon of Richard Nixon), pardoning future offences is not.

The practical implications of these limitations have led to heated debates, especially when Presidents issue controversial pardons.

How Does the Power to Pardon Operate in India?

In India, the power to pardon is vested in the President under Article 72 of the Constitution. It states:
"The President shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit, or commute the sentence of any person convicted of any offence."

Scope of Article 72

The President’s power extends to:

Court Martial Cases: The President can pardon or commute sentences imposed by military courts.

Union Jurisdiction: It applies to offences against laws under the Union's executive domain.

Death Sentences: The President can commute or pardon death sentences, the highest form of clemency.

Governor’s Power to Pardon

Under Article 161, the Governors of states in India hold a similar power but limited to state law offences.

What Are the Limitations of the President’s Pardon Power in India?

The exercise of pardon power in India is not absolute. According to Maru Ram v. Union of India (1980):

• Advice of the Council of Ministers: The President cannot act independently and must adhere to the advice of the Union Government.
• Judicial Review: Courts can review the President’s decisions if they are deemed arbitrary, discriminatory, or mala fide. However, this intervention is rare.

How Do the US and Indian Systems Compare?

Feature	United States	India
Source of Power	Article II, Section 2, Clause 1	Article 72 of the Constitution
Applicability	Federal Offences	Court Martial, Union Laws, Death Penalty
LImitations	No state crimes or Impeachment cases	Requires government advice, Judicial review in rare cases
Independence	Absolute discretion of the President	Bound by ministerial advice
Judicial Oversight	None	Limited to cases of malice or arbitrariness

What Are the Debates Surrounding the Power to Pardon?

The power to pardon is inherently contentious because it allows the executive to override judicial outcomes. Critics argue that it undermines the rule of law and can be misused for political purposes. For example:

• In the US, Presidents have issued pardons perceived as self-serving or politically motivated, such as Nixon’s pardon by Ford.
• In India, critics often question the lack of transparency in the government’s recommendations to the President.

Supporters, however, maintain that pardons are essential for correcting judicial errors and upholding mercy as a principle of justice.

Can the Power to Pardon Be Reformed?

In both countries, calls for reform often center on:

• Increased Transparency: Introducing clear guidelines for the exercise of pardon power.
• Checks and Balances: Allowing a review mechanism to prevent misuse while respecting executive authority.
• Decentralization: Expanding the scope of clemency powers at regional or state levels to ensure fairness.

Conclusion: A Balancing Act Between Mercy and Justice

The power to pardon represents a delicate balance between executive authority, judicial independence, and the principles of justice. While the US model grants greater independence to the President, the Indian model incorporates checks through ministerial advice and judicial review. Both systems reflect their constitutional philosophies and governance structures, demonstrating how clemency can be a powerful yet controversial tool in the pursuit of justice.