Revision summary
Article 72 (and 161) are exercised on aid and advice; Maru Ram, Kehar Singh, Epuru Sudhakar and Shatrughan Chauhan frame Indian limits and delay. The US Article II pardon is personal, federal-only, and barred in impeachment. Judicial review is stronger in India; political cost is the main US brake. A preemptive pardon forgives before conviction, as in Ford–Nixon. India has no working doctrine of preemptive pardon for the untried.
Model answer
Introduction
Pardon is the executive’s power to soften the criminal law after the courts have spoken — or, in some systems, even before they have. India places it in Articles 72 and 161. The United States places it in Article II. Both are wide. Neither is a personal whim beyond all law, though the US comes closer to that picture.
Body
India
Article 72 lets the President grant pardons, reprieves, respites or remissions, and commute sentences, for Union offences, court-martial, and death sentences. The Governor’s parallel is Article 161. The President acts on aid and advice (Maru Ram v. Union of India). Kehar Singh allowed a pardon even after a Supreme Court confirmation of death, because mercy is a different power from appeal. Epuru Sudhakar and Shatrughan Chauhan opened limited judicial review: the order can be struck for mala fides, irrelevant grounds, or keeping a convict in agonising delay. There is no unfettered personal prerogative. Swaran Singh warned against mechanical mercy. Death-row procedure now includes a real mercy file, not a drawer.
United States
Article II gives the President power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. It is personal, not cabinet-bound in the Indian sense. Ex parte Garland and later cases treat it as broad. Congress cannot easily carve it down. Limits are still there: no pardon for state crimes, no undoing of impeachment, and a political limit — Ford’s pardon of Nixon remains the textbook cost. Federalist 74 defended energy in mercy.
Preemptive pardons
A preemptive (or prospective) pardon forgives offences before conviction, and sometimes before charge, for a class of past acts. Ford–Nixon is the famous American example. Debate in recent US cycles has asked whether a President may pardon in advance for unnamed future crimes; most scholarship treats past acts as the outer line, not a licence for tomorrow’s offences.
India’s text (“punishment or sentence”) is usually read after sentence, though the wording of Article 72 is not as narrow as a lay reader thinks. Practice and the mercy rules run on petitions after conviction. There is no Indian convention of a Nixon-style preemptive pardon for an untried President or minister. Doing so would collide with equal protection and with the idea that investigation is not the President’s to cancel by fiat. If ever attempted, Epuru Sudhakar review would be the first stop.
- Comparison in one line: India advises and reviews; America personalises and then pays politically.
Flow diagram
flowchart TD I[Art 72] --> A[Aid and advice] I --> R[Limited review] U[US Art II] --> P[Personal pardon] U --> X[Not state crime / not impeachment] E[Preemptive] --> U
Conclusion
Both Presidents can spare a convict. India’s mercy is ministerial and lightly reviewable. America’s is personal and mostly political. Preemptive pardon is an American device for past federal offences; it is not an Indian working tool.
Quick related
Students also ask
-
Examine the need for electoral reforms as suggested by various committees, with particular reference to "one nation - one election" principle.
Next question on this syllabus topic (2024 · Q1). View answer →
-
Can the Indian President pardon before a trial ends?
The working scheme is mercy after sentence. A Nixon-style preemptive pardon is not an established Indian practice and would face equality and review objections.
-
Is a rejected mercy petition appealable as of right?
There is no second statutory appeal. Courts still examine delay, non-application of mind and mala fides in the Shatrughan Chauhan line.
PYQ trend
When UPSC asked this
Related PYQs from other years, newest first. Open a question to read it.
-
2024 · Q1 · GS II · 10 marks
Examine the need for electoral reforms as suggested by various committees, with particular reference to "one nation - one election" principle. -
2024 · Q12 · GS II · 15 marks
Right to privacy is intrinsic to life and personal liberty and is inherently protected under Article 21 of the constitution. Explain. In this reference discuss the law relating to D.N.A. testing of child in the womb to establish its paternity. -
2024 · Q15 · GS II · 15 marks
Discuss India as a secular state and compare with the secular principles of the US constitution. -
2023 · Q1 · GS II · 10 marks
"Constitutionally guaranteed judicial independence is a prerequisite of democracy". Comment. -
2023 · Q11 · GS II · 15 marks
" The Construction of India is a living instrument with capabilities of enormous dynamism. It is a constitution made for a progressive society". Illustrate with special reference to the expanding horizons of the right to life and personal liberty. -
2023 · Q12 · GS II · 15 marks
Explain the constitutional perspectives of Gender Justice with the help of relevant Constitutional Provisions and case laws. -
2023 · Q13 · GS II · 15 marks
Account for the legal and political factors responsible for the reduced frequency of using Article 356 by the Union Governments since mid 1990s. -
2022 · Q4 · GS II · 10 marks
Discuss the role of the Vice -Presidents of India as the chairman of the Rajyasabha.
More from this topic
Q15 · UPSC Mains 2024 · GS II · 15 marks
Discuss India as a secular state and compare with the secular principles of the US constitution.
Indian Constitution
Indian secularism: Preamble, Articles 25–28, Bommai as basic structure, personal laws, State reform of Hindu law and regulation of temples. US secularism: First Amendment establishment and free exercise, Everson’s wall, Engel on school prayer, no millet personal law. India practises principled distance and social reform; the United States practises non-establishment. Minority educational rights under Article 30 have no US analogue of that form. Neither wall nor distance is a finished peace with majoritarian politics. Comparison is of method, not of piety.
Q12 · UPSC Mains 2024 · GS II · 15 marks
Right to privacy is intrinsic to life and personal liberty and is inherently protected under Article 21 of the constitution. Explain. In this reference discuss the law relating to D.N.A. testing of child in the womb to establish its paternity.
Indian Constitution
Puttaswamy held that privacy is part of Article 21 and that any restriction must be legal, necessary and proportionate. Section 112 of the Evidence Act treats a child born in a valid marriage as legitimate unless non-access is proved. Goutam Kundu and later cases refused to make DNA a routine paternity weapon in a private quarrel. A test on a child still in the womb adds miscarriage risk and collides with the woman’s bodily autonomy. Suchita Srivastava had already linked reproductive choice to personal liberty. Proportionality will rarely justify a prenatal paternity expedition. The law of paternity is not a right to inspect a womb.
Q1 · UPSC Mains 2024 · GS II · 10 marks
Examine the need for electoral reforms as suggested by various committees, with particular reference to "one nation - one election" principle.
Indian Constitution
Tarkunde, Goswami, Law Commission 170/255 and the Election Commission have long asked for ceilings on party spend, faster petitions, and inner-party democracy. Candidate spend is capped; party spend is not, which is why money still dominates the poll. ADR disclosure and Lily Thomas reduced opacity and the conviction cushion; they did not end criminalisation. ONOE, as framed by the Kovind committee, promises one Model Code freeze, lower cost and less policy freeze. Federal cost: truncated Assemblies, President’s Rule risk, and nationalisation of State polls. Simultaneity is not a substitute for audited party finance and a statutory Code. Reform that works is a package, not a single polling date.
Toppers' copies
Toppers' copies for this question will be uploaded soon.