In the recent past President Biden granted clemency to almost 1,500 people in 2024-25, highlighting the active use of pardoning powers globally. The power to pardon is an essential facet of executive clemency, serving as a humanitarian check on the judiciary. In India, this power is vested in the President under Article 72 of the Constitution, while in the USA, it is granted by Article II, Section 2 of the U.S. Constitution.

President's Power to Pardon: India vs USA

Constitutional Framework and Scope

Indian Context:

• Article 72 empowers President for Union law offenses and death sentences
• Federal structure limits scope - state offenses under Governor's jurisdiction
• Binding ministerial advice ensures collective responsibility
• Cannot pardon impeachment cases or state-level crimes
• Recent example: Perarivalan's release in Rajiv Gandhi assassination case (2022)

US Context:

• Broad federal jurisdiction covering all federal crimes
• Unilateral presidential authority without cabinet consultation
• Historical precedent since George Washington's Whiskey Rebellion pardons
• Cannot override state convictions or congressional impeachment
• Trump's 237 pardons during final days demonstrated extensive use

Limits to Pardoning Power

Indian Limitations:

• Judicial review for arbitrary or discriminatory decisions
• Maru Ram v. Union of India established review parameters
• Cannot violate fundamental rights or constitutional principles
• Subject to Article 14 equality provisions
• Kehar Singh v. Union of India upheld death sentence despite mercy petition

US Limitations:

• State-federal divide prevents interference in state crimes
• Cannot pardon impeachment proceedings
• Ex Parte Garland limited judicial interference
• Political accountability through congressional oversight
• Ford-Nixon precedent established constitutional boundaries

Preemptive Pardons

A preemptive pardon is the issuance of a pardon to someone who has not yet been charged with or convicted of a crime, but who is seen as a potential target of legal or political retribution. It serves as a protective measure to prevent future prosecution or punishment for actions that could be the subject of future investigations, typically from an incoming political administration or other adversaries. There is no such concept as a preemptive pardon under the Indian Constitution or laws.

Application:

• Ford's Nixon pardon (1974) prevented prosecution entirely
• Carter's Vietnam draft dodgers amnesty covered thousands preemptively
• Biden's recent considerations for potential Trump prosecutions

Indian Position:

• No explicit constitutional provision for preemptive pardons
• Traditional post-conviction clemency model
• Supreme Court precedents focus on completed judicial processes
• Pending cases typically await trial completion

While both systems recognize clemency as a constitutional necessity, India’s model is guided and limited by ministerial advice and judicial review, ensuring accountability, whereas the U.S. President enjoys a wider, discretionary, and politically significant pardon power, including preemptive pardons.