The President’s power to issue Pardon, in the United States and in India

The President's Power to Issue Pardons: A Comparative Study of India and the United States

The power to pardon is a constitutional prerogative vested in the heads of state in most democracies, aimed at tempering justice with mercy. This executive privilege enables the mitigation of sentences, remission of punishment, or complete absolution of offenses. In India and the United States, the power to pardon is an essential aspect of the President’s authority, albeit with variations in its scope, application, and limitations.

This eBook explores the constitutional basis, scope, and implications of the President’s power to pardon in both countries, offering insights relevant to governance, justice, and constitutional law.

The Power to Pardon: Concept and Purpose

A pardon is an act of grace, exempting an individual from the punishment prescribed by law. The objectives of the pardon power include:

Correction of Judicial Errors: Addressing potential miscarriages of justice.
Humanitarian Considerations: Offering relief in cases of exceptional circumstances.
Policy Considerations: Facilitating reconciliation or addressing broader social concerns, such as political clemency.

Constitutional Basis and Scope

India

Constitutional Provision: Article 72 of the Indian Constitution empowers the President to grant pardons.
Scope:
- The power extends to:
  - Cases tried under Union Law.
  - Military Court-Martial Sentences.
  - Death Penalty Cases (unique to India, as no such restriction exists in the U.S.).
- The President acts on the advice of the Council of Ministers as per Article 74, making this power executive in nature.

United States

Constitutional Provision: Article II, Section 2, Clause 1 of the U.S. Constitution gives the President the power to grant reprieves and pardons.
Scope:
- The power extends to:
  - Federal Offenses only (state crimes are under the jurisdiction of state governors).
- This power excludes cases of impeachment.
- The President exercises this power independently, without requiring advice or consent from other branches.

Types of Clemency

Both countries recognize various forms of clemency that fall under the broader purview of the power to pardon:

India (Article 72)

Pardon: Complete absolution of punishment and restoration of rights.
Commutation: Substitution of a punishment with a lesser form.
Remission: Reduction of the duration of the sentence, without changing its nature.
Respite: Awarding a lesser sentence due to special circumstances like pregnancy.
Reprieve: Temporary suspension of a sentence, especially in death penalty cases.

United States (Article II, Section 2)

Pardon: Full forgiveness and restoration of rights.
Commutation: Reduction in the severity of a sentence without nullifying the conviction.
Reprieve: Temporary delay in the execution of a sentence.
Amnesty: General pardon for a group of people, often in political contexts.

Key Differences Between India and the United States

Aspect	India	United States
Authority	President (Article 72)	President (Article II, Section 2)
Scope	Federal laws, court-martial cases, and death penalty	Federal laws only (no jurisdiction over state laws)
Advisory Mechanism	Acts on the advice of the Council of Ministers	Acts independently
Exclusions	None explicitly, but subject to judicial review	Impeachment cases
Judicial Review	Allowed in cases of mala fide or arbitrariness	Not subject to judicial review

Judicial Review of the Pardon Power

India

While the President’s power to pardon is discretionary, it is not absolute. Courts in India have held that this power is subject to judicial review in cases of:
- Mala Fide Intent: If the pardon is granted with malicious intent.
- Arbitrariness: If the decision lacks a reasonable basis.
- Procedural Lapses: If due process is not followed.

Key Cases:

Maru Ram v. Union of India (1980):
- The Supreme Court held that the President must act on the advice of the Council of Ministers.
Kehar Singh v. Union of India (1989):
- The Court clarified that the President’s pardon power is not subject to detailed judicial review, except on grounds of mala fide intent.
Epuru Sudhakar v. Govt. of A.P. (2006):
- The Court reiterated that pardons should not be arbitrary or discriminatory.

United States

The President’s power to pardon is largely absolute and not subject to judicial review. This independence is rooted in the principle of separation of powers.
Exceptions:
- A pardon cannot override impeachment decisions.
- The pardon must comply with federal laws (e.g., not extending to civil cases or private liabilities).

Key Precedents:

Ex parte Garland (1867):
- The Supreme Court upheld the President’s absolute pardon power, stating that it extends to offenses committed before or after conviction.
Schick v. Reed (1974):
- The Court affirmed that the pardon power includes conditional pardons.

High-Profile Pardons: Examples

India

Kehar Singh (1989):
- Kehar Singh, convicted for the assassination of Prime Minister Indira Gandhi, unsuccessfully sought a presidential pardon.
Nalini Sriharan (2000s):
- Convicted in the Rajiv Gandhi assassination case, her clemency plea sparked debates on the role of mercy petitions.

United States

Gerald Ford’s Pardon of Richard Nixon (1974):
- Ford pardoned Nixon for any crimes he may have committed during the Watergate scandal, stirring nationwide controversy.
Donald Trump Pardons:
- Trump granted controversial pardons, including to political allies like Michael Flynn and Steve Bannon.

Challenges and Controversies

Political Misuse:
- In both countries, the pardon power has been criticized for being used to favor political allies or for populist purposes.
Lack of Transparency:
- Decisions are often opaque, leading to questions about fairness and accountability.
Impact on Rule of Law:
- Excessive or arbitrary use of pardons may undermine judicial authority.

Conclusion

The power to pardon embodies the intersection of law, justice, and mercy, serving as a vital tool to correct judicial errors and address humanitarian concerns. While India and the United States share a common goal of tempering justice with compassion, their distinct constitutional frameworks influence the scope and application of this power. For UPSC aspirants, understanding these nuances is essential to appreciating the delicate balance between executive authority and the rule of law in democratic governance.

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The President’s power to issue Pardon, in the United States and in India

The President's Power to Issue Pardons: A Comparative Study of India and the United States

The Power to Pardon: Concept and Purpose

Constitutional Basis and Scope

India

Constitutional Provision: Article 72 of the Indian Constitution empowers the President to grant pardons.

Scope:

The power extends to:

Cases tried under Union Law.

Military Court-Martial Sentences.

Death Penalty Cases (unique to India, as no such restriction exists in the U.S.).

The President acts on the advice of the Council of Ministers as per Article 74, making this power executive in nature.

United States

Constitutional Provision: Article II, Section 2, Clause 1 of the U.S. Constitution gives the President the power to grant reprieves and pardons.

Scope:

The power extends to:

Federal Offenses only (state crimes are under the jurisdiction of state governors).

This power excludes cases of impeachment.

The President exercises this power independently, without requiring advice or consent from other branches.

Types of Clemency

Both countries recognize various forms of clemency that fall under the broader purview of the power to pardon:

India (Article 72)

Pardon: Complete absolution of punishment and restoration of rights.

Commutation: Substitution of a punishment with a lesser form.

Remission: Reduction of the duration of the sentence, without changing its nature.

Respite: Awarding a lesser sentence due to special circumstances like pregnancy.

Reprieve: Temporary suspension of a sentence, especially in death penalty cases.

United States (Article II, Section 2)

Pardon: Full forgiveness and restoration of rights.

Commutation: Reduction in the severity of a sentence without nullifying the conviction.

Reprieve: Temporary delay in the execution of a sentence.

Amnesty: General pardon for a group of people, often in political contexts.

Key Differences Between India and the United States

Judicial Review of the Pardon Power

India

While the President’s power to pardon is discretionary, it is not absolute. Courts in India have held that this power is subject to judicial review in cases of:

Mala Fide Intent: If the pardon is granted with malicious intent.

Arbitrariness: If the decision lacks a reasonable basis.

Procedural Lapses: If due process is not followed.

Key Cases:

Maru Ram v. Union of India (1980):

The Supreme Court held that the President must act on the advice of the Council of Ministers.

Kehar Singh v. Union of India (1989):

The Court clarified that the President’s pardon power is not subject to detailed judicial review, except on grounds of mala fide intent.

Epuru Sudhakar v. Govt. of A.P. (2006):

The Court reiterated that pardons should not be arbitrary or discriminatory.

United States

The President’s power to pardon is largely absolute and not subject to judicial review. This independence is rooted in the principle of separation of powers.

Exceptions:

A pardon cannot override impeachment decisions.

The pardon must comply with federal laws (e.g., not extending to civil cases or private liabilities).

Key Precedents:

Ex parte Garland (1867):

The Supreme Court upheld the President’s absolute pardon power, stating that it extends to offenses committed before or after conviction.

Schick v. Reed (1974):

The Court affirmed that the pardon power includes conditional pardons.

High-Profile Pardons: Examples

India

Kehar Singh (1989):

Kehar Singh, convicted for the assassination of Prime Minister Indira Gandhi, unsuccessfully sought a presidential pardon.

Nalini Sriharan (2000s):

Convicted in the Rajiv Gandhi assassination case, her clemency plea sparked debates on the role of mercy petitions.

United States

Gerald Ford’s Pardon of Richard Nixon (1974):

Ford pardoned Nixon for any crimes he may have committed during the Watergate scandal, stirring nationwide controversy.

Donald Trump Pardons:

Trump granted controversial pardons, including to political allies like Michael Flynn and Steve Bannon.

Challenges and Controversies

Conclusion

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