Presidential Pardons: Powers and Limitations in the US and India
11-12-2024
07:29 AM

What’s in today’s article?
- Why in News?
- The US President’s power to pardon
- The limits of the US President’s power to pardon
- Pre-emptive pardons
- The power to pardon in India

Why in News?
U.S. President Joe Biden has issued a full and unconditional pardon to his son, Hunter Biden, for cases involving tax evasion and lying about drug use while purchasing a firearm.
Reports suggest Biden is also considering pre-emptive pardons for allies, including Vice President Kamala Harris, former Chief Medical Officer Anthony Fauci, and Republican Congresswoman Liz Cheney, to protect them from potential prosecution under President-elect Donald Trump.
The US President’s power to pardon
- About
- The President of the US has the constitutional right to pardon or commute sentences related to federal crimes.
- The US Supreme Court has held that this power is “granted without limit” and cannot be restricted by Congress.
- Clemency is a broad executive power, and is discretionary.
- The President is not answerable for his pardons, and does not have to provide a reason for issuing one.
- Constitutional provision
- Article 2, Section II, Clause 1 of the U.S. Constitution grants the President the power to issue pardons for federal offenses, except in cases of impeachment.
- A pardon nullifies punishment but does not overturn convictions.
- Historical Roots of the Pardon Power
- The concept of pardon originates from English legal traditions, tracing back to King Ine of Wessex in the 7th century, who exercised the “prerogative of mercy.”
- This authority was later delegated to colonial authorities in America before influencing the framers of the U.S. Constitution.
- Inclusion in the U.S. Constitution
- In 1787, Alexander Hamilton proposed the Presidential pardon power at the Constitutional Convention.
- A debate followed about Senate involvement, but the power was ultimately vested solely in the President as part of the Executive branch, separate from legislative and judicial functions.
- Role of the Office of the Pardon Attorney
- The Department of Justice’s Office of the Pardon Attorney processes pardon petitions, conducting initial reviews and FBI background checks.
- The office makes non-binding recommendations to the President, who has the final authority.
- Application Process for Pardons
- While the President can pardon federal crimes at any time, the DoJ requires individuals to apply only after a five-year period following release from confinement, demonstrating a law-abiding life during this time.
The limits of the US President’s power to pardon
- Express Limitations on Presidential Pardons
- Federal Offenses Only: The President can pardon crimes under federal law but not offenses under state laws.
- No Pardons in Impeachment Cases: The President’s authority does not extend to impeachment cases.
- Implied Limitation on Pardons
- A crime must first be committed for the President to issue a pardon.
- As ruled in Ex Parte Garland (1866), a pardon can be granted at any stage: before legal proceedings, during them, or after conviction and judgment.
- Impact and Interpretation of Pardons
- No Erasure of Record: A pardon does not remove the conviction; both the conviction and pardon remain on the individual’s criminal record.
- No Declaration of Innocence: A pardon does not imply innocence, nor is it definitively considered an admission of guilt.
Pre-emptive pardons
- Can the President pardon someone to protect them ‘pre-emptively’ from future criminal prosecution?
- The President cannot preemptively pardon future criminal acts, as clarified by the Ex Parte Garland ruling and the Constitution Annotated.
- Preemptive Pardons for Past Crimes
- While not applicable to future offenses, the President can pardon individuals for crimes already committed, even before charges are filed or sentences imposed.
- Historical examples include:
- Gerald Ford pardoning Richard Nixon: A broad pardon for any offenses Nixon "has committed or may have committed."
- Abraham Lincoln: Pardoned Confederate deserters during the Civil War to encourage defections.
- Jimmy Carter: Pardoned Vietnam War draft evaders who had not been charged.
The power to pardon in India
- Presidential Pardon Powers under Article 72 of Indian Constitution
- The President of India is empowered to grant pardons, reprieves, respites, or remissions of punishment and to suspend, remit, or commute sentences in the following cases:
- Court Martial: Sentences imposed by military courts.
- Union Law Offenses: Punishments for offenses under laws where the Union has executive authority.
- Death Sentences: Cases involving the death penalty.
- The President of India is empowered to grant pardons, reprieves, respites, or remissions of punishment and to suspend, remit, or commute sentences in the following cases:
- Judicial Interpretation of Article 72
- Acting on Advice: In Maru Ram v. Union of India (1980), the Supreme Court ruled that the President must act on the advice of the Central Government when granting pardons.
- Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once.
- If the Council of Ministers decides against any change, the President has no option but to accept it.
- Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once.
- Acting on Advice: In Maru Ram v. Union of India (1980), the Supreme Court ruled that the President must act on the advice of the Central Government when granting pardons.
- Judicial Review: Challenges to the use of Article 72 are limited to rare cases where the decision is deemed “wholly irrelevant, irrational, discriminatory, or mala fide.”
Q.1. What are the limitations of the US President’s power to pardon?
The US President can pardon only federal crimes and not state offenses or impeachment cases. As per Ex Parte Garland (1866), pardons cannot cover future crimes but can be granted before charges are filed.
Q.2. How does the power to pardon differ in India?
Under Article 72, the Indian President can pardon court-martial cases, Union law offenses, and death penalties. However, the President acts on the Cabinet’s advice and cannot exercise this power independently.
News: After son Hunter, Joe Biden may ‘preemptively pardon’ allies: How this power of the US President works | The Hindu | Indian Express