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’?
Approach · directive: “compare and contrast / what”
What it asks · Compare the source, scope and procedure of clemency powers in India and the USA, set out the limits in each, and explain preemptive pardons.
It asks 3 things — answer each
- Compare and contrast: the President's pardoning power in India (Article 72) and in the USA (Article II)
- Limits: the constraints on the power in each country
- What: explain 'preemptive pardons'
Open with · Both constitutions vest mercy in the head of State: India's President under Article 72 on ministerial advice, the US President personally under Article II, Section 2.
Cover
- India: pardon, reprieve, respite, remission, suspension, commutation — for court-martial sentences, offences under Union laws, and all death sentences; Governors under Article 161.
- USA: 'reprieves and pardons for offences against the United States' — federal offences only; state crimes lie with governors.
- Common ground: an act of executive grace, separate from judicial review of guilt; neither extends to impeachment.
- Limits in India: bound by Cabinet advice (Maru Ram, 1980); reviewable for mala fides, arbitrariness or irrelevant considerations (Kehar Singh, 1989; Epuru Sudhakar, 2006).
- Also in India: unexplained delay in deciding mercy petitions can justify commutation of a death sentence (Shatrughan Chauhan, 2014).
- Limits in the USA: only federal crimes and not impeachment; otherwise very wide and largely unreviewable; self-pardon remains an open question.
- Preemptive pardons: granted before any charge (Ex parte Garland, 1866) — Ford's pardon of Nixon (1974), Biden's January 2025 pardons; Indian clemency follows conviction.
Close with · Biddle v. Perovich (1927) made the public welfare the test of clemency; preemptive pardons for allies strain it, while India's advice-and-review model guards it.
Add value (verified)
- Article 72 covers every death sentence, whatever the law under which it was imposed.The Constitution of India (Legislative Department, Ministry of Law and Justice, as on 1 May 2024) — Article 72(1)(c) ↗“in all cases where the sentence is a sentence of death”
- The US pardon clause is confined to federal offences and expressly excludes impeachment.The Constitution of the United States: A Transcription — National Archives, Article II, Section 2 ↗“he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
- Ex parte Garland held that a US pardon can come before any prosecution begins.Ex parte Garland, 71 U.S. 333 (1866), text via Chan Robles ↗“may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment”
- Article 72 applies to the sentence of a convicted person.The Constitution of India ↗“commute the sentence of any person convicted of any offence”
- Biddle v. Perovich tied clemency to the public welfare.Constitution Annotated: Overview of the Pardon Power (Cornell LII) ↗“the public welfare, not [the individual’s] consent, determines what shall be done”
Question: UPSC's CS (Main) 2025, GS Paper II — paper ↗. Approach: Minimalist IAS, checked 3 Oct 2026 (how we verify) — UPSC publishes no model answers. ·
Model answer· 222words · Minimalist IAS
Both constitutions vest mercy in the head of State: India's President acts under Article 72 on ministerial advice, the US President personally under Article II, Section 2.
India and the USA compared
| Aspect | India (Article 72) | USA (Article II) |
|---|---|---|
| Who decides | Cabinet advice | President alone |
| Covers | Union-law offences, court-martial, death sentences | Federal offences only |
| Judicial review | Limited | Almost none |
- Forms: pardon, reprieve, respite, remission, suspension, commutation; Governors hold a parallel power (Article 161), as US Governors do.
- Common nature: executive grace, not an appeal; the finding of guilt stands.
Limits in both countries
- India: bound by Cabinet advice (Maru Ram, 1980); reviewable for mala fides or arbitrariness (Kehar Singh, 1989; Epuru Sudhakar, 2006).
- Delay: unexplained delay on mercy petitions can justify commuting a death sentence (Shatrughan Chauhan, 2014).
- USA: excludes 'Cases of Impeachment' and State offences; otherwise barely reviewable, and self-pardon is untested.
What are 'preemptive pardons'?
- Meaning: a pardon before any charge; Ex parte Garland (1866) allowed it 'either before legal proceedings are taken or during their pendency'.
- Examples: Ford's 1974 pardon of Nixon; Biden's January 2025 pardons of officials and relatives.
- India: Article 72 covers persons 'convicted of any offence', so clemency follows conviction in practice.
Biddle v. Perovich (1927) made 'the public welfare' the test of clemency; preemptive pardons for allies strain it, while India's advice-and-review model guards it.
Prepared by Minimalist IAS to the answer standard of Shivam Singh (mentor, 7 years) · facts checked against official sources (how we verify) · updated 3 Oct 2026. UPSC publishes no model answers: compare your structure and coverage with this, then write your own.
