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'?

The pardoning power of the President is an act of executive clemency designed to prevent the miscarriage of justice and temper the rigidity of the law. While both the Indian President (under Article 72) and the US President (under Article II, Section 2) possess this power, its scope, application, and constitutional underpinnings differ significantly due to the divergent nature of their respective democratic systems (Parliamentary vs. Presidential).

Comparison of Pardoning Power: India and the USA

Similarities:

• Purpose: In both nations, the power is used to correct potential judicial errors, provide relief from unduly harsh sentences, and serve humanitarian causes.
• Forms of Clemency: Both Presidents can grant pardons (complete absolution), reprieves (stay of execution), commutations (lesser punishment), and remissions.
• Executive Nature: It is inherently an executive function, distinct from the judicial process, acting as a final safeguard.

Contrasts:

• Discretion vs. Aid and Advice:
  • India: The President does not act on their own discretion. Under Article 74, the President is bound by the aid and advice of the Council of Ministers (CoM).
  • USA: The pardoning power is the absolute discretionary prerogative of the US President. They are not bound by the advice of the Cabinet or the Department of Justice.
• Jurisdictional Scope (Federal vs. State):
  • India: The President can pardon offenses against Union laws, all cases involving court-martials, and holds the exclusive power to pardon death sentences, even if the offense is against a State law.
  • USA: The US President can only pardon offenses against the United States (Federal crimes). They have absolutely no power over State crimes, which fall under the purview of State Governors.
• Applicability to Impeachment:
  • India: The Constitution does not explicitly bar the President from pardoning individuals convicted of constitutional misdemeanors, though practically it is governed by the CoM.
  • USA: The US Constitution explicitly prohibits the President from using the pardoning power in "Cases of Impeachment."

Limits to the Pardoning Power

Despite the broad nature of clemency, neither constitutional framework grants truly unlimited power.

Limits in India:

1. Judicial Review: Initially considered immune from judicial scrutiny, the Supreme Court in the Epuru Sudhakar case (2006) established that the pardoning power is subject to limited judicial review. It can be struck down if the decision is arbitrary, mala fide, discriminatory, or based on extraneous considerations.
2. Bound by the Executive: As held in the Maru Ram case (1980), the power rests with the Central Government, not the President personally. The President cannot act independently.
3. No Parallel Judiciary: The Supreme Court in the Kehar Singh case (1989) clarified that while exercising this power, the President does not sit as a court of appeal. The power is an executive mechanism, not a judicial one.

Limits in the USA:

1. Restriction to Federal Crimes: As noted, the absolute inability to pardon state-level convictions serves as a major structural limitation dictated by federalism.
2. Impeachment Bar: The President cannot shield individuals from legislative removal from office.
3. Civil Liability: A presidential pardon only protects an individual from criminal prosecution and penalties. It does not immunize them from civil lawsuits or private claims.
4. Temporal Limit (Future Crimes): The US President can only pardon crimes that have already been committed. They cannot grant a license to commit a crime in the future.

What are 'Preemptive Pardons'?

A preemptive pardon is a pardon granted for a crime after the act has been committed, but before any formal legal charges have been filed, a trial has occurred, or a conviction has been secured.

• Operation: It grants the individual blanket immunity from future prosecution for specific past actions.
• Status in the USA: Preemptive pardons are entirely legal and constitutionally valid in the USA. The landmark Supreme Court case Ex parte Garland (1866) affirmed that the pardoning power may be exercised at any time after the offense's commission, either before legal proceedings are taken, during their pendency, or after conviction.
• Prominent Example: The most famous instance of a preemptive pardon was in 1974, when President Gerald Ford pardoned former President Richard Nixon for any crimes Nixon "committed or may have committed or taken part in" against the United States during his presidency, effectively ending the Watergate criminal investigations against him.
• Status in India: While the Supreme Court in K.M. Nanavati vs. State of Bombay noted that pardons can theoretically be granted before, during, or after trial, the practice of granting broad, preemptive "blanket" pardons before formal charges are framed is virtually absent in Indian constitutional practice. The Indian system relies on the withdrawal of prosecution (Section 321 of the BNSS/CrPC) by the executive rather than a preemptive presidential pardon.

In summation, while the pardoning power serves the universal goal of tempering justice with mercy, the US system treats it as an instrument of sovereign presidential prerogative, whereas the Indian system embeds it within the parliamentary checks and balances of Cabinet responsibility and judicial oversight.