Pardons: India’s Reviewable Clemency vs US Presidential Prerogative

Introduction

A recent comparative piece in The Indian Express revisits a longstanding constitutional contrast: the nature and scope of the presidential pardoning power in India and the United States. While both constitutions vest a clemency power in the head of state, their legal treatment differs markedly. The Indian Supreme Court has accepted limited judicial review over the exercise of pardoning powers under Article 72; by contrast, the U.S. Supreme Court treats the presidential pardon as an independent, constitutionally absolute power under Article II. This divergence has practical consequences for the separation of powers, remedying miscarriages of justice, and the protection of individual rights where the executive acts in relation to criminal punishment.

Legal Background

India: Article 72 of the Constitution grants the President power to grant pardons, reprieves, respites or remissions of punishment and to commute sentences. In Kehar Singh v. Union of India (1988), the Supreme Court held that the clemency power is justiciable to the extent that the Court may examine whether the power was exercised mala fide, for extraneous considerations, or in a way that violates fundamental rights. Kehar Singh thus accepted limited judicial review — review of the process and motive rather than substitution of the executive’s judgment on merits.

United States: Article II, Section 2 of the U.S. Constitution confers on the President the power to grant reprieves and pardons for federal offenses. Landmark decisions such as Ex parte Garland (1866) recognised the pardon power as plenary and irrevocable subject only to acceptance by the pardoned person (as later clarified in Burdick v. United States (1915), which addressed the legal consequences of accepting a pardon). U.S. jurisprudence traditionally resists judicial encroachment on the President’s pardon power, treating it as a political and constitutional prerogative largely immune from judicial review.

Other relevant jurisprudence: In India, subsequent decisions (for example, the Supreme Court’s approach in cases challenging inordinate delays in deciding mercy petitions such as Devender Pal Singh Bhullar v. State of NCT of Delhi and later mercy-petition jurisprudence) have shaped remedial contours — courts sometimes commute death sentences where delay or arbitrariness undermines fairness. In the U.S., the Court’s treatment of clemency has emphasised the political nature of the power but has also recognised limited legal doctrines (e.g., that a pardon implies a confession of guilt in certain contexts).

Critical Analysis

The constitutional designs of India and the U.S. reflect competing commitments. India’s decision to make the President’s clemency power subject to limited judicial scrutiny manifests a constitutional balance: clemency remains an executive function but not an unreviewable refuge for decisions infected by malice or illegality. Kehar Singh’s recognition of reviewability is situated in a broader constitutional scheme where fundamental rights (including the right to life and fair procedure under Article 21) impose constraints on State action. The judiciary’s supervisory role operates primarily as procedural and motivational review: courts inquire whether the executive considered relevant materials, followed statutory or constitutional procedure, and did not act for extraneous or bad-faith reasons. This doctrinal posture preserves executive discretion while protecting against arbitrariness.

By contrast, the U.S. model treats clemency as an incident of executive supremacy in the criminal domain. Ex parte Garland’s statement that the pardon power “is unlimited” establishes a broad, historical conception: clemency serves as a political corrective outside normal judicial mechanisms. The practical effect is that litigants face a higher threshold to challenge or nullify a pardon. This approach privileges finality and political accountability (through elections and political processes) over judicial oversight. It also means that where executive clemency is allegedly exercised for corrupt or partisan ends, remedies are limited and often political rather than judicial.

There are trade‑offs. India’s reviewability can protect vulnerable individuals from executive arbitrariness and ensure compliance with procedural fairness, especially in capital cases where delay and opacity have life-or-death consequences. Cases like Bhullar demonstrate the court’s willingness to intervene where delays render the clemency process constitutionally infirm. But judicial review risks entanglement in executive policy and may blur separation of powers if courts substitute their own valuations for clemency judgments.

Meanwhile, the U.S. model permits robust executive latitude but can leave victims of patronage or political deals with scant judicial recourse. The Burdick doctrine (pardon acceptance issues) and other technical limits offer some legal structure, but principally the remedy for abuse remains political.

Opinion & Outlook

The comparative lesson is not prescriptive but pragmatic. For jurisdictions seeking to guard individual rights in the face of executive clemency, a limited-review doctrine — focused on process, motive and compliance with constitutional safeguards — offers a principled middle path. India’s experience suggests that courts can fashion remedies (commutation, directions for prompt decision-making) that respect executive discretion while upholding fairness and transparency. However, institutional competence matters: courts should avoid micromanagement and limit their inquiries to legal propriety rather than the merits of clemency decisions.

For the United States and other jurisdictions with plenary executive pardon powers, continued reliance on political checks may be insufficient where systemic bias or secrecy is alleged. Legislative reforms to increase transparency (e.g., requiring publication of reasons or a review mechanism) could bolster public confidence without dismantling executive prerogative.

Ultimately, the choice reflects constitutional culture. Democracies that place a premium on judicial protection of rights will naturally incline toward reviewability; those privileging executive finality will guard clemency as a separate political remedy.

Conclusion

The Indian and U.S. approaches to pardons illustrate a fundamental constitutional choice between judicial corrective power and executive autonomy. Kehar Singh’s limited-review doctrine seeks to tether clemency to rule-of-law values; U.S. doctrines preserve clemency as a largely unreviewable executive instrument. Each model has strengths and vulnerabilities — the challenge for reformers is to ensure transparency, prevent arbitrariness, and maintain appropriate separation of powers while safeguarding human life and liberty.