Introduction

The pardoning power, exercised by the Head of State, is meant to correct judicial errors and show mercy. In India, it is conferred on the President under Article 72, while in the USA, it is vested in the President under Article II, Section 2, each reflecting their distinct constitutional frameworks.

Body

Key Similarities:

• Same basic idea: Both systems let the President show mercy to fix harsh results or mistakes in criminal justice.
• Many types of mercy: Both can pardon, commute, remit, or otherwise reduce punishment and related penalties.
• No role in impeachment: Neither President can use clemency to stop or undo impeachment proceedings.

Key difference

Limits

• India: 
  • Cabinet Advice Binding: The President cannot act independently and must follow the advice of the Council of Ministers.
  • Judicial Review Possible: Courts can review pardons if they are arbitrary, mala fide, or lack application of mind.
  • Jurisdictional Limit: The power extends only to offences under Union law, while Governors exercise it for state offences.
• United States: 
  • No Power in Impeachment: The President cannot grant pardons in impeachment proceedings.
  • Restricted to Federal Offences: Pardons apply only to federal crimes, not state-level offences.
  • Political Checks: While not legally reviewable, controversial pardons may face strong political backlash and congressional scrutiny.

What are “Preemptive pardons”?

• Meaning: Pardons granted before any trial or conviction, sometimes even before formal charges.
• USA: Constitutionally permitted; famous example is President Ford’s pardon of Richard Nixon for any offences he “committed or may have committed.”
• India: Not recognized in the same way. Mercy is typically considered after conviction and sentence, especially post-appeal. Preventive or blanket pre-charge pardons are not the practice.

Conclusion

Both systems treat pardons as a mercy tool, but India prioritises institutional accountability through an advice-driven process and potential judicial scrutiny, while the United States prioritises executive flexibility with broad presidential discretion over federal clemency, including preemptive use.

DOWNLOAD PDF