GS2 2025 Q3 10 marks 150 words Pardoning powers

UPSC Mains 2025 GS2 Q3 — Pardoning powers

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'? (Answer in 150 words)

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No closely related PYQs found in our 11-year corpus — this question explores a relatively unique angle. We only surface matches with substantive topical overlap, not loose adjacency.

Related Prelims MCQs

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Source Map — where to read

Indian Polity, M. Laxmikanth(7th ed.) · President · p.199 Polity

"But, the pardoning power of the governor differs from that of the President in following two respects: • 1. The President can pardon sentences inflicted by court martial (military courts) while the governor cannot. • 2. The President can pardon death sentence while governor cannot. Even if a state law prescribes death sentence, the power to grant pardon lies with the President and not the governor. However, the governor can suspend, remit or commute a death sentence. In other words, both the governor and the President have concurrent power in respect of suspension, remission and commutation of…"

Laxmikanth, M. Indian Polity. 7th ed., McGraw Hill. · President · p.199 Polity

"But, the pardoning power of the governor differs from that of the President in following two respects: • 1. The President can pardon sentences inflicted by court martial (military courts) while the governor cannot. • 2. The President can pardon death sentence while governor cannot. Even if a state law prescribes death sentence, the power to grant pardon lies with the President and not the governor. However, the governor can suspend, remit or commute a death sentence. In other words, both the governor and the President have concurrent power in respect of suspension, remmit and commutation of de…"

Introduction to the Constitution of India, D. D. Basu (26th ed.). · The Union Executive · p.222 Polity

"Pardoning power of President and Governor compared. Under the Indian Constitution, the pardoning power shall be possessed by the President as well as the State Governors, under Articles 72 and 161, respectively as follows- • Col1: 1.; President: Has the power to grant pardon, reprieve, respite, suspension, remission or commutation in respect of punishment or sentence by court-martial.; Col3: \mathbf{1}.; Governor: No such power.; Col5: 222…"

Indian Polity, M. Laxmikanth(7th ed.) · World Constitutions · p.791 Polity

"Practice Questions on Indian Polity (General Studies-Prelims) 793 • 1. It is subject to the vote of Parliament. • 2. It is Subject to the discussion in Parliament. • 3. It is subject to the vote of Lok Sabha only. • 4. It is not subject to the vote of Parliament. Ca) I and 2 (b) 2 and 3 Cc) 2 and 4 Cd) I and 4 189. The correct statements regarding the difference between the pardoning powers of President and Governor are: • 1. The Governor can pardon sentences inflicted by court martial while the President cannot. • 4.…"

Indian Polity, M. Laxmikanth(7th ed.) · President · p.198 Polity

"Article 72 of the Constitution empowers the President to grant pardons to persons who have been tried and convicted of any offence in all cases where: • 1. Punishment or sentence is for an offence against a Union Law;• 2. Punishment or sentence is by a court martial (military court); and f 3. Sentence is a sentence of death. The pardoning power of the President is independent of the Judiciary. The President, while exercising this power, does not sit as a court of appeal. The object of conferring this judicial power on the President is two-fold: (a) to keep the door open for correcting any judi…"

How this topic is evolving

New Dimension Connected to trend: Judicial Assertiveness and Institutional Timelines · 99 recent news items

The focus has shifted from the mere existence of executive discretionary powers to the constitutionality of their 'indefinite delay.' While the original question compares the nature of pardon powers, current judicial trends—such as the Supreme Court’s rulings on Article 200—increasingly frame administrative procrastination as a violation of procedural due process and Article 21.

A current examiner could reframe this as:

“The constitutional silence regarding timelines for executive discretion cannot be used as a shield for institutional inaction.” In light of recent judicial pronouncements, critically examine the limits of discretionary powers of the Governor and the President in India. (Answer in 250 words)

Why this framing: Supreme Court's refusal to accept 'constitutional silences' as an excuse for gubernatorial inaction under Article 200.

Question Decoded — examiner's intent

Directive verbs
Comparecontrast
Scope keywords
President's power to pardonIndia and in the USAlimits to itpreemptive pardons
Implicit sub-parts
  • Constitutional basis (Article 72 vs Article II, Section 2) and the source of advice (COM vs independent discretion).
  • Judicial reviewability of the pardon power in both jurisdictions (Marbury v. Madison/Kehar Singh/Epuru Sudhakar).
  • Specific constraints regarding State laws/Federal crimes and Impeachment exceptions.
  • Legal validity and definition of pardons issued before a conviction is secured.
Common pitfalls
  • Failing to mention that the Indian President acts on the advice of the Council of Ministers, while the US President has near-absolute personal discretion.
  • Ignoring the 'Impeachment' exception which is a critical limitation in the US Constitution.
  • Writing too much on Indian Article 72 and neglecting the US comparative aspect, leading to an unbalanced answer.
  • Conflating 'preemptive pardon' with 'pardon for future crimes' (which is not possible; it only applies to past acts before indictment).
Dimensions required
ConstitutionalComparative JurisprudenceJudicial/LegalExecutive Discretion
Marks allocation hint

Allocate 40 words to the comparison/contrast focusing on executive advice vs discretion. Dedicate 60 words to specific limits like judicial review and impeachment. Use the final 50 words to define and contextually explain preemptive pardons using the Ford/Nixon example.

How examiners have framed this topic over the years

Evolution from broad structural comparisons (2018) to high-precision analysis of specific executive functions and technical legal concepts (2022-2025).

Depth Deepening Based on 5 cross-year PYQs

The examiner has transitioned from testing broad systemic frameworks, such as the basic tenets of India and USA in 2018, to increasingly granular functional comparisons. While 2021 focused on the conceptual depth of the 'Right to Equality', the focus shifted in 2022 and 2025 toward specific executive mechanics, moving from presidential election procedures (India vs. France) to specific executive powers like pardoning (India vs. USA). The 2025 framing is particularly distinct for introducing niche technical terminology ('preemptive pardons'), signaling a shift from general constitutional theory to specialized legal nuances within the comparative lens.

Dimensions tested
Comparative constitutionalism (India vs. USA, UK, France)Executive powers and election proceduresFundamental Rights doctrinesJudicial convergence and divergenceLegislative sovereignty and systemic pillars
Angles still under-tested
Comparison of federal distribution of powers with newer models like Canada or AustraliaRole and independence of quasi-judicial bodies (e.g., Election Commissions) across democraciesConstitutional amendment processes and 'Basic Structure' equivalents in other jurisdictions
PYQs this pattern was synthesized from

Answer Skeleton — fill this in

Introduction

The pardoning power is an executive function intended to correct judicial errors and provide relief from harsh sentences, enshrined in Article 72 of the Indian Constitution and Article II, Section 2 of the U.S. Constitution.

Constitutional Basis and Scope

Comparative Framework

  • India: Covers sentences for offenses against Union laws, Court Martials, and death sentences [M. Laxmikant, Ch. 17].
  • USA: Pertains only to Federal offenses; cannot pardon those convicted under State laws [NCERT Class XI, Indian Constitution at Work].
  • Nature: In India, the President acts on binding advice of the Council of Ministers (Art 74), whereas the U.S. President has plenary power acting independently.

Constraints on Pardoning Power

Legal and Judicial Limits

  • Judicial Review: In India, the Epuru Sudhakar case established that pardons are subject to review if based on malafide or arbitrary grounds [PRS Legislative Research, Note on Pardoning Power].
  • USA Impeachment: The U.S. Constitution explicitly prohibits the use of pardons in cases of Impeachment.
  • Advice: Indian President cannot exercise discretion; must follow Cabinet recommendation [Maru Ram v. Union of India].

Concept of Preemptive Pardons

Definition and Application

  • Definition: A pardon granted before a person is formally charged or convicted of a crime.
  • U.S. Precedent: Well-established, famously used by President Gerald Ford to pardon Richard Nixon post-Watergate.
  • Indian Context: Absent in India; the power is generally understood to be exercised only after a conviction is recorded [Laxmikant, Ch. 17].

Conclusion

While both systems utilize pardons as a "safety valve" for justice, India’s model is Cabinet-led and judicially tempered, whereas the U.S. model grants significantly broader personal discretion to the executive. Maintaining a balance between executive clemency and the Rule of Law remains essential for democratic accountability.

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