President's power to issue Pardon in the US and in India  

Context: Recently, the United States President Joe Biden has issued “A Full and Unconditional Pardon” for his son Hunter Biden, who was awaiting sentences in two cases related to tax evasion and lying about drug use while buying a handgun. 

The President is now considering a series of ‘pre-emptive’ pardons for allies, including the Vice-President, former Chief Medical Officer etc. The idea is that a pardon would shield allies from arrest and prosecution when President-elect Donald Trump assumes office.

The US President’s power to Pardon: 

• In the U.S. Constitution, under Article II Section 2(1) the President can grant pardon except in cases of impeachment. 
• The U.S. President has absolute power of pardon for federal criminal offences. Such a pardon may be issued prior to the start of a legal case as well as prior to or after a conviction for a crime.
• Origin: The power to pardon has roots in English history and can be traced back to the reign of King Ine of Wessex in the 7th century.
• The Office of the Pardon Attorney under the Department of Justice (DoJ) assists the President by processing thousands of petitions for pardons received annually.
  • The process involves an initial review and an FBI background check before the recommendation is made to the President.  
  • The recommendation is non-binding on the President who makes the final decision. 

Limits of the US President’s power to pardon: 

• Under Article 2 of the US Constitution:
  • The President can only pardon “Offences against the United States”, which refers to criminal offences under federal law (applicable in multiple states and investigated by federal agencies such as the FBI). The President cannot pardon an action that is an offence under the law of a specific state. 
  • The President cannot grant pardons in cases of impeachment.
• Implied limitation under Article 2: A crime must first be committed for a President to then pardon it. However, once a federal crime is committed, the power to pardon could be exercised at any stage including before charges have been filed, during their pendency, or after conviction and judgment.

The Indian President’s power to pardon: 

• The President of India under Article 72 of the Constitution is empowered “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence:
  • in all cases where the punishment or sentence is by a Court Martial
  • in all cases where the punishment or sentence is for an offence against any law. relating to a matter to which the executive power of the Union extends. 
  • in all cases where the sentence is a sentence of death.
• The Supreme Court has weighed in on the President’s power to grant pardons.
  • In Maru Ram v. Union of India (1980):
    • The SC held that the President cannot grant a pardon on her own and must act upon the advice of the Centre.
    • It also held that the court would only hear a challenge to the exercise of power under Article 72 in the ‘rare’ situation where the decision is wholly irrelevant, irrational, discriminatory or mala fide.

Also Read: Pardoning powers of President of India 

Key Differences between Pardoning powers of the Indian President and the US President: