PETITIONER:
KEHAR SINGH AND ANR. ETC.
Vs.
RESPONDENT:
UNION OF INDIA and ANR.
DATE OF JUDGMENT16/12/1988
BENCH:
PATHAK, R.S. (CJ)
BENCH:
PATHAK, R.S. (CJ)
VENKATARAMIAH, E.S. (J)
MISRA RANGNATH
VENKATACHALLIAH, M.N. (J)
OJHA, N.D. (J)
CITATION:
1989 AIR 653 1988 SCR Supl. (3)1102
1989 SCC (1) 204 JT 1988 (4) 693
1988 SCALE (2)1565
CITATOR INFO :
D 1991 SC 345 (21)
E 1991 SC1792 (4,14)
ACT:
Constitution of India–Art. 72–President’s power to go
into the merits of case finally decided by the Courts–
Defined–Exercise of power-Not open to judicial review on
merits–No guidelines need be laid down-Convict seeking
relief has no right to insist on oral hearing before the
President.
HEADNOTE:
The Supreme Court dismissed an appeal by special leave
filed by Kehar Singh, against his conviction and sentence of
death awarded under section 120-B read with section 302 of
the Indian Penal Code in connection with the assassination
of the then Minister of India. Smt. Indira Gandhi. A Review
Petition filed thereafter by Kehar Singh was dismissed on
7th September, 1988 and later a writ petition was also
dismissed by this Court.
On 14th October, 1988 Kehar Singh’s son presented a
petition to the President of lndia for the grant of pardon
to Kehar Singh under Article 72 of the Constitution on the
ground that the evidence on record of the criminal case
established that Kehar Singh was innocent and the verdict of
the courts that Kehar Singh was guilty, was erroneous. In
the petition, he also urged that it was a fit case of
clemency and prayed that Kehar Singh’s representative may be
allowed to see the President in person in order to explain
the case concerning him. His request for hearing was not
accepted on the ground that it was not in accordance with
“the well established practice in respect of consideration
of mercy petitions”. Thereafter, in response to a further
letter written by counsel for Kehar Singh to the President
of India refuting the existence of any practice not to
accord a hearing on a petition under Article 72, the
Secretary to the President wrote to counsel that the
President is of the opinion that he cannot go into the
merits of a case finally decided by the highest Court of the
land and that the petition for grant of pardon on behalf of
Kehar Singh will be dealt with in accordance with the
provisions of the Constitution of lndia. The President of
India thereafter rejected the said petition. Hence these
writ petitions and the special leave petition to this Court.
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The main issues involved in the writ petitions and the
S.L.P. were: (a) whether there is justification for the view
that when exercising his powers under Art. 72, the President
is precluded from entering into the merits of a case
decided finally by the Supreme Court; (b) to what areas does
the power of the President to scrutinise extend; and (c)
whether the petitioner is entitled to an oral hearing from
the President in his petition invoking the powers under Art.
72.
Disposing of the petitions,
HELD: 1(i) The power to pardon is a part of the
constitutional scheme and it should be so treated also in
the Indian Republic. It has been reposed by the people
through the Constitution in the Head of the State, and
enjoys high status. It is a constitutional responsibility of
great significance, to be exercised when occasion arises in
accordance with the discretion contemplated by the context.
[1109H; 1110A-B]
W. I. Biddle v. Vuco Perovich, 71 L. Ed. 1161 referred
to.
1 (ii) The power to pardon rests on the advice tendered
by the Executive to the President, who subject to the
provisions of Art. 74(1) of the Constitution. must act in
accordance with such advice. [1110B]
Maru Ram v. Union of lndia, [1981] 1 S.C.R. 1196
followed.
2[i] It is open to the President in the exercise of the
power vested in him by Art. 72 of the Constitution of
scrutinise the evidence on the record of the criminal case
and come to a different conclusion from that recorded by the
court in regard to the guilt of, and sentence imposed on,
the accused. In doing so, the President does not amend or
modify or supersede the judicial record. The judicial record
remains intact. and undisturbed. The President acts in a
wholly different plane from that in which the court acted.
He acts under a constitutional power, the nature of which is
entirely different from the judicial power and cannot be
regarded as an extension of it. And this is so,
notwithstanding that the practical effect of the
Presidential act is to remove the stigma of guilt from the
accused or to remit the sentence imposed on him. [111lC-D]
2(ii) The legal of a effect of a pardon is wholly
different from a judicial supersession of the original
sentence. It is the nature of the power which is
determinative. [1111G]
Kuljit Singh v. Lt. Governor of Delhi, [1982] 3 S.C.R.
58; Nar A Singh v. State of Uttar Pradesh, [19S5] I S.C.R.
PG NO 1104
238 and Sarat Chandra Rabha and Others v. Khagendranath Nath
and Others, [1961] 2 S.C.R. 133, followed.
Ex Parte William Wells, 15 L. Ed. 421., Ex Parte
Garland, 18 L.Ed. 366 at 370; Ex Parte Philip Grossman, 267
U.S. 87; 69 L.Ed. 527 B and U.S. v. Benz, 75 L.Ed. 354 at
358 referred to.
3(i) There is no right in the condemned person to insist
on an oral hearing before the President. The proceeding
before the President is of an executive character, and when
the petitioner files his petition, it is for him to submit
with it all the requisite information necessary for the
disposal of the petition. He has no right to insist on
presenting on oral argument. [1116A-B]
3(ii) The manner of consideration of the petition lies
within the discretion of the President, and it is for him to
decide how best he can acquaint himself with all the
information that is necessary for its proper and effective
disposal. The President may consider sufficient the
information furnished before him in the first instance or he
may send for further material relevant to the issues which
he considers pertinent, and he may, if he considers it will
assist him in treating with the petition, give an’oral
hearing to the parties. The matter lies entirely within his
discretion. [1116B-C]
3(iii) As regards the considerations to he applied by
the President to the petition, the law in this behalf has
already been laid down by this Court in Maru Ram etc. v.
Union of India [1981] I S.C.R. 1196. [1116D]
4. There is sufficient indication in the terms of Art.
72 and in the history of the power enshrined in that
provision as well as existing case law, and specific
guidelines need not be spelled out for regulating the
exercise of the power by the President. Indeed, it may not
be possible to lay down any precise, clearly defined and
sufficiently channelised guidelines, since the power under
Article 72 is of the widest amplitude, can contemplate a
myriad kinds and categories of cases with facts and
situations varying from case to case, in which the merits
and reasons of State may be profoundly assisted by
prevailing occasion and passing time. [1116F-F]
5. The question as to the area of the President’s power
under Article 72 falls squarely within the judicial domain
and can be examined by the court by way of judicial review.
However, the order of the President cannot be subjected to
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judicial review on its merits except within the strict
limitations defined in Maru Ram etc. v. Union of India
[1981] 1 S.C.R. 1196 at 1249. The function of determining
whether the act of a constitutional or statutory functionary
falls within the constitutional or legislative conferment of
power, or is vitiated by self-denial on an erroneous
appreciation of the full amplitude of the scope of the power
is a matter for the court. [1115G; 1113B-C]
Special Reference No. I of 1964, [1965j I S.C.R. 413 at
446; State Rajasthan and Ors. v. Union of India, [1978] 1
S.C.R. 1 at 80-82; Minerva Mills Ltd. v. Union of India,
[1981] 1 S.C.R. 206 at 286-287; S.P. Sampath Kumar v. Union
of India, [1987] I S.C.C. 124; A.k. Roy, etc. v. Union of
India and Anr., [1982] 2 S.C.R. 272 and K.M. Nanavati v. The
State of Bombay, [1961] I S.C.R. 497, referred to.
Gopal Vinayak Godse v. The State of Maharashtra and Ors.,
[1961] 3 SCR 440; Mohinder Singh v. State of Punjab, A.I.R.
1976 SC 2299, Joseph Peter v. State of Goa, Daman and Diu,
[1977] 3 SCR 771; Riley and Others v. Attorney General of
Jamaica and Another, [1982] 3 ALL E.R. 469; Council of Civil
Service Unions and Others v. Minister for the Civil Service,
[1984] 3 ALL, E.R. 935; Attorney General v. Times Newspapers
Ltd.. [1973] 3 All E.R. 54; Horwitz v. Connor Inspector
General of Penal Establishments of Victoria, [1908] 6 C.I.R.
38; Michael De Feritas also called Michael Abdul Malik y.
Ceorge Ramoutar and Ors., [1975] 3 W.I.R. 388, 394, Bandhua
Mukti Morcha v. Union of India, [1984] 2 S. C. R. 67, 161
and Rai Sahib Ram Jawaya Kapur and Ors. v. The State of
Punjab, [1955] 2 S. C. R. 225, 235-6, distinguished.
In the instant case, having regard to the view taken on
the question concerning the area and scope of the
President’s power under Art. 72 of the Constitution, the
Court directed that the petition invoking that power shall
be deemed to be pending before the President to be dealt
with and disposed of afresh. The sentence of death imposed
on Kehar Singh shall remain in abeyance meanwhile. [1117C-D]
The Constitution of India, in keeping with modern
constitutional practice, is a constitutive document,
fundamental to the governance of the country, whereby,
according to accepted political theory, the people of India
have provided a constitutional polity consisting of certain
primary organs, institutions and functionaries to exercise
the powers provided in the Constitution. [1108H; 1109A]
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All power belongs to the people, and it is entrusted by
them to specified institutions and functionaries with the
intention of working out, maintaining and operating a
constitutional order. [1109B ]
To any civilised society, there can be no attributes
more important than the life and personal liberty of its
members. That is evident from the paramount position given
by the Courts to Art. 21 of the Constitution. [1109C]
The Courts are the constitutional instrumentalities to
go into the scope of Article 72. [1115B]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions (Crl.) Nos. 526-27
of 1988.
[Under Article 32 of the Constitution of India).
Ram Jethmalani. Shanti Bhushan, Ms. Rani Jethmalani,
R.M. Tewari, P.K. Dey. Sanjay Karol. Ms. Lata Krishnamurthy,
Dr. B.L. Wadhera. Ms. Nandita Jain and Mahesh Jethmalani
for the Petitioners.
K. Parasaran, Attorney General, G. Ramaswamy,
Additional Solocitor General, Ms. A Subhashini and
Parmeshwaran for the Respondents.
The Judgment of the Court was delivered by
PATHAK, CJ. On 22 January, 1986 Kehar Singh was
convicted of an offence under section 120-B read with
section 302 of the Indian Penal Code in connection with the
assassination of Smt. Indira Gandhi, then Prime Minister of
India, on 31 October, 1984 and was sentenced to death by
the learned Additional Sessions Judge, New Delhi. His appeal
was dismissed by the High Court of Delhi, and his subsequent
appeal by special leave [Criminal Appeal No. 180 of 1987 to
this Court was dismissed on 3 August, 1988. A Review
Petition filed thereafter by Kehar Singh was dismissed on 7
September, 1988 and later a writ petition was also dismissed
by this Court.
On 14 October, 1988 his son, Rajinder Singh, presented
petition to the President of India for the grant of pardon
to Kehar Singh under Art. 72 of the Constitution. In that
petition reference was made to the evidence on the record of
the criminal case and it was sought to be established that
PG NO 1107
Kehar Singh was innocent, and that the verdict of the Courts
that Kehar Singh was guilty was erroneous. It was urged that
it was a case for the exercise of clemency. The petition
included a prayer that Kehar Singh's representative may be
allowed to see the President in person in order to explain
the case concerning him. The petition was accompanied by
extracts of the oral evidence recorded by the trial court.
On 23 October. 1988 counsel for Kehar Singh wrote to the
President requesting an opportunity to present the case
before him and for the grant of a hearing in the matter. A
letter dated 31 October, 1988 was received from the
secretary to the President referring to the 'mercy petition'
and mentioning that in accordance with "the well established
practice in respect of consideration of mercy petitions, it
has not been possible to accept the request for a hearing".
On 3 November. 1988 a further letter was addressed to the
President counsel refuting the existence of any practice not
to accord a hearing On a petition under Art. 72 and
requesting him to re-consider his decision to deny a
hearing. On 15 November, 1988 the Secretary to the President
wrote to counsel is follows:
"Reference is invited to your letter dated November 3,
1988 on the subject mentioned above. The letter has been
perused by the President and its contents carefully
considered. The President is of the opinion that he cannot
go into the merits of a case finally decided by the Highest
Court of the Land.
Petition for grant of pardon on behalf of Shri Kehar
Singh will be dealt with in accordance with the provisions
of the Constitution of India".
Thereafter the President rejected the petition under
Art. 72, and on 24 November, 1988 Kehar Singh was informed
of the rejection of the petition. His son, Rajinder Singh,
it is said, came to know on 30 November, 1988 from the
newspaper media that the date of execution of Kehar Singh
had been fixed for 2 December, 1988. The next day, 1
December, 1988 be filed a petition in the High Court of
Delhi praying for an order restraining, the respondents from
executing the sentence of death, and on the afternoon of the
same day the High Court dismissed the petition. Immediately
upon dismissal of the writ petition, counsel moved this
Court and subsequently field Special Leave Petition [Crl.
No. 3084 of 1988 in this Court along with Writ Petitions
Nos. 526-27 of 19888 under Art. 32 of the Constitution.
During the preliminary hearing late in the afternoon of the
same day 1 December, 1988 this Court decided to entertain
PG NO 1108
the writ petition and made an order directing that the
execution of Kehar Singh should not be carried out
meanwhile.
Some of the issues involved in these writ petitions and
appeal were, it seems, raised in earlier cases but this
Court did not find it necessary to enter into those
questions in those cases. Having regard to the seriousness
of the controversy we have considered it appropriate to
pronounce the opinion of this Court on those questions.
The first question is whether there is justification for
the view that when exercising his powers under Art. 72 the
President is precluded from entering into the merits of a
case decided finally by this Court. It is clear from the
record before us that the petition presented under Art. 72
was specifically based on the assertion that Kehar Singh was
innocent of the crime for which he was convicted. That case
put forward before the President is apparent from the
contents of the petition and the copies of the oral evidence
on the record or the criminal case. An attempt was made by
the learned Attorney General to show that the President had
not declined to consider the evidence led in the criminal
case, but on a plain reading of the documents we are unable
to agree with him.
Clause (I) of Art 72 of the Constitution with which we
are concerned, provides.
"The President shall have the power to grant pardon,
reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person
convicted of any offence:--
(a) in all cases where the punishment or sentence is by
Court Martial:
(b) 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;
(c) in all cases where the sentence is a sentence of
death."
The Constitution of India, in keeping with modern
constitutional practice, is a constitutive document,
fundamental to the governance of the country, whereby,
according to accepted political theory, the people of India
PG NO 1109
have provided a constitutional polity consisting of certain
primary organs, institutions and functionaries to exercise
the powers provided in the Constitution. All power belongs
to the people, and it is entrusted by them to specified
institutions and functionaries with the intention of working
cut, maintaining and operating a constitutional order. The
Preambular statement of the Constitution begins with the
significant recital:
"We, the people of India, having solemnly resolved to
constitute India into a Sovereign Socialist Secular
Democratic Republic .. do hereby adopt, enact and give to
ourselves this Constitution."
To any civilised society, there can be no attributes
more important than the life and personal liberty of its
members. That is evident from the paramount position given
by the Courts to Art. 21 of the Constitution. These twin
attributes enjoy a fundamental ascendancy over all other
attributes of the political and social order, and
consequently, the Legislature, the Executive and the
Judiciary are more sensitive to them than to the other
attributes of daily existence. The deprivation of personal
liberty and the threat of the deprivation of life by the
action of the State is in most civilised societies regarded
seriously and recourse, either under express constitutional
provision or through legislative enactment, is provided to
the judicial organ. But, the fallibility of human judgment
being undeniable even in the most trained mind, a mind
resourced by a harvest of experience, it has been considered
appropriate that in the matter of life and personal liberty,
the protection should be extended by entrusting power
further to some high authority to scrutinise the validity of
the threatened denial of life or the threatened or continued
denial of personal liberty. The power so entrusted is a
power belonging to the people and reposed in the highest
dignitary of the State. In England, the power is regarded as
the royal prerogative of pardon exercised by the Sovereign,
generally through the Home Secretary. It is a power which is
capable of exercise on a variety of grounds, for reasons of
State as well as the desire to safeguard against judicial
error. It is an act of grace issuing from the Sovereign. In
the United States, however, after the founding of the
Republic, a pardon by the President has been regarded not as
a private act of grace but as a part of the constitutional
scheme. In an opinion, remarkable for its erudition and
clarity, Mr. Justice Holmes, speaking for the Court in W.I.
Biddle v. Vuco Perovich, 71 L. Ed. 1161 enunciated this view
and it has since been, affirmed in other decisions. The
power to pardon is a part of the constitutional scheme, and
we have no doubt, in our mind, that it should be so treated
PG NO 1110
also in the Indian Republic. It has been reposed by the
people through the Constitution in the Head of the State,
and enjoys high status. It is a constitutional
responsibility of great significance, to be exercised when
occasion arises in accordance with the discretion
contemplated by the context. It is not denied, and indeed it
has been repeatedly affirmed in the course of argument by
learned counsel, Shri Ram Jethmalani and Shri Shanti
Bhushan, appearing for the petitioners that the power to
pardon rests on the advice tendered by the Executive to the
President, who subject to the provisions of Art. 74(1) of
the Constitution, must act in accordance with such advice.
We may point out that the Constitution Bench of this Court
held in Maru Ram v. Union of India? [1981] 1 S.C.R. 1196
that the power under Art. 72 is to be exercised on the
advice of the Central Government and not by the President on
his own, and that the advice of the Government binds the
Head of the State .
To what areas does the power to scrutinise extend? In Ex
parte William Wells, 15 L.Ed. 421 the United States Supreme
Court pointed out that it was to be used “particularly when
the circumstances of any case disclosed such uncertainties
as made it doubtful it there should have been a conviction
of the criminal, or when they are such as to show that there
might be a mitigation of the punishment without lessening
the obligation of vindicatory justice”. And in Ex parte
Garland, 18 L Ed. 366 at 370 decided shortly after the Civil
War, Mr. Justice Field observed: “The inquiry arises as to
the effect and operation of a pardon, and on this point all
the authorities concur. A pardon reaches both the punishment
prescribed for the offence and the guilt of the offender;
and when the pardon is full, it releases the punishment and
blets out of existence the guilt, so that in the eye of the
law the offender is as innocent as if he had never committed
the offence…..if granted after conviction, it removes the
penalties and disabilities, and restores him to all his
civil rights .. ” The classic exposition of the law is to be
found in Exparte Philip Grossman, 267 U.S. 87; 69 L. Ed. 527
where Chief Justice Taft explained:
“Executive clemency exists to afford relief from under
harshness or evident mistake in the operation or the
enforcement of the criminal law. The administration of
justice by the courts is not necessarily always wise or
certainly considerate of circumstances which may properly
mitigate guilt. To afford a remedy, it has always been
thought essential in popular governments, as well as in
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monarchies, to vest in some other authority than the courts
power to ameliorate or avoid particular criminal judgments
The dicta in Ex parte Philip Grossman (supra) was
approved and adopted by this Court in Kuljit Singh v. Ll.
Governor of Delhi., [1982] 3 S.C.R. 58. In actual practice,
a sentence has been remitted in the exercise of this power
on the discovery of a mistake committed by the High Court in
disposing of a criminal appeal. See Nar Singh v. State of
Uttar Pradesh, [ 1955] l S.C.R.238.
We are of the view that it is open to the President in
the exercise of the power vested in him by Art. 72 of the
Constitution to scrutinise the evidence on the record of the
criminal case and come to a different conclusion from that
recorded by the court in regard to the guilt of, and
sentence imposed on, the accused. In doing so, the President
does not amend or modify or supersede the judicial record.
The judicial record remains intact, and undisturbed. The
president acts in a wholly different plane from that in
which the Court acted. He acts under a constitutional power,
the nature of which is entirely different from the judicial
power and cannot be regarded as an extension of it. And this
is so, notwithstanding that the practical effect of the
Presidential act is to remove the stigma of guilt from the
accused or to remit the sentence imposed on him. In U.S. v.
Benz, 75 L. Ed. 354 at 358 Sutherland, J. observed:
“The judicial power and the executive power over
sentences are readily distinguishable. To render judgment is
a judicial function. To carry the judgment into effect is an
executive function. To cut short a sentence by an act of
clemency is an exercise of executive power which abridges
the enforcement of the judgment, but does not alter it qua a
judgment. To reduce a sentence by amendment alters the terms
of the judgment itself and is judicial act as much as the
imposition of the sentence in the first instance.”
The legal effect of a pardon is wholly different from a
judicial supersession of the original sentence. It is the
nature of the power which is determinative. In Sarat Chandra
Rabha and Others v. Khagendranath Nath and Others, [196] 2
S.C.R. 133 at 138-140, Wanchoo, J. speaking for the Court
addressed himself to the question whether the order of
remission by the Governor of Assam had the effect of
reducing the sentence imposed on the apellant in the same
way in which an order of an appellate or revisional criminal
PG NO 1112
court has the effect of reducing the sentence passed by a
trial court, and after discussing the law relating to the
power to grant pardon, he said:
“ ….Though, therefore, the effect of an order of
remission is to wipe out that part of the sentence of
imprisonment which has not been served out and thus in
practice to reduce the sentence to the period already
undergone, in law the order of remission merely means that
the rest of the sentence need not be undergone, leaving the
order of conviction by the court and the sentence passed by
it untouched. In this view of the matter the order of
remission passed in this case though it had the effect that
the appellant was released from jail before he had served
the full sentence of three years’ imprisonment and had
actually served only about sixteen months’ imprisonment, did
not in any way affect the order of conviction and sentence
passed by the Court which remained as it was .. ”
and again:
“ …..Now where the sentence imposed by a trial court
is varied by way of reduction by the appellate or revisional
court, the final sentence is again imposed by a court; but
where a sentence imposed by .1 court is remitted in part
under scction 401 of the Code of Criminal Procedure that has
not the effect in law of reducing the sentence imposed by
the court, though in effect the result may be that the
convicted person suffers less imprisonment that that imposed
by the court. The order of remission affects the execution
of the sentence imposed by the court but does not affect the
sentence as such, which remains what it was in spite of the
order of remission…..”
It is apparent that the power under Art. 72 entitles the
President to examine the record of evidence of the criminal
case and to determine for himself whether the case is one
deserving the grant of the relief falling within that power.
We are of opinion that the President is entitled to go into
the merits of the case notwithstanding that it has been
judicially concluded by the consideration given to it by
this Court.
In the course of argument, the further question raised
was whether judicial review extends to an examination of the
PG NO 1113
order passed by the President under Art. 72 of the
Constitution. At the outset we think it should be clearly
understood that we are confined to the question as to the
area and scope of the President’s power and not with the
question whether it has been truly exercised on the merits.
Indeed, we think that the order of the President cannot be
subjected to judicial review on its merits except within the
strict limitations defined in Maru Ram, etc. v. Union of
India. [1981] 1 S.C.R. 1196 at 1249. The function of
determining whether the act of a constitutional or statutory
functionary falls within the constitutional or legislative
conferment of power, or is vitiated by self-denial on an
erroneous appreciation of the full amplitude of the power is
a matter for the court. In Special Reference No. 1 of 1964,
[1965] 1 S.C.R. 413 at 446, Gajendragadkar, C.J., speaking
for the majority of this Court, observed:
“…..Whether or not there is distinct and rigid
separation of powers under the Indian Constitution, there is
no doubt that the Constitution has entrusted to the
Judicature in this country the task of construing the
provisions of the Constitution …..”
This Court in fact proceeded in State of Rajasthan and
Others v. Union of India, [1978] I S.C. R. 1 at 80-81 to
hold:
“……So long as a question arises whether an authority
under the Constitution has acted within the limits of its
power or exceeded it, it can certainly be decided by the
Court. Indeed it would be its Constitutional obligation to
do so …..this Court is the ultimate interpreter of the
Constitution and to this Court is assigned the delicate task
of determining what is the power conferred on each branch of
Government, whether it is limited, and if so. what are the
limits and whether any action of that branch transgresses
such limits. It is for this Court to uphold the
Constitutional values and to enforce the Constitutional
limitations. That is the essence of the Rule of Law ….”
and in Minerva Mills Ltd. v. Union of India. [1981] 1 S. C.
R. 206 at 286-287, Bhagwati, J. said:
“….the question arises as to which authority must
decide what are the limits on the power conferred upon each
organ or instrumentality of the State and whether such
PG NO 1114
limits are transgressed or exceeded ..The Constitution has,
therefore, created an independent machinery for resolving
these disputes and this independent Machinery is the
judiciary which is vested with the power of judicial
review…..”
It Will be noted that the learned Judge observed in S.P.
Sampath Kumar v. Union of India, [1987] 1 S.C.C. 124 that
this was also the view of the majority Judges in Minerva
Mills Ltd. v. Union of India, (supra).
The learned Attorney General of India contends that the
power exercised under Art. 72 is not justiciable, and that
Art. 72 is an enabling provision and confers no right on any
individual to invoke its protection. The power, he says, can
be exercised for political considerations, which are not
amenable to judicially manageable standards. In this
connection, he has placed A.K. Roy, etc. v. Union of India
and Anr., [1982] 2 SCR 272 before us. Reference has also
been made to D K.M. Nanavati v. The State of Bombay, [ i961]
1 SCR 497 to show that when there is an apparent conflict
between the power to pardon vested in the President or the
Governor and the judicial power of the Courts and attempt
must be made to harmonise the provisions conferring the two
different powers. On the basis of Gopal Vinayak Godse v. The
State of Maharashtra and Ors., [ 1961] 3 SCR 440 he urges
that the power to grant remissions is exclusively within the
province of the President. He points out that the power
given to the President is untrammelled and as the power
proceeds on the advice tendered by the Executive to the
President, the advice likewise must be free from
limitations, and that if the President gives no reasons for
his order, the Court cannot ask for the reasons, all of
which, the learned Attorney General says, establishes the
non-justiciable nature of the order. Then he refers to the
appointment of Judges by the President as proceeding from a
sovereign power, and we are referred to Mohinder Singh v.
State of Punjab, A.I.R. 1976 SC 2299; Joseph Peter v. State
of Goa, Daman and Diu, [1977] 3 SCR 771 as well as Riley and
Others v. Attorney General of Jamaica and Another, [ 1982] 3
All E.R. 469 and Council of Civil Service Unions and Others
v. Minister for the Civil Service, [1984] 3 All E.R. 935
besides Attorney-General v. Times Newspapers Ltd., [1973] 3
All E.R. 54. Our attention has been invited to paragraphs
949 to 951 in 8 Halsbury’s Laws of England to indicate the
nature of the power of pardon and that it is not open to the
Courts to question the manner of its exercise. Reference to
a passage in 104 Law Quarterly Review was followed by
Horwitz v. Connor, Inspector General of Penal Establishments
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of Victoria, [1908] 6 C.L.R. 38. Reliance was placed on the
doctrine of the division of powers in support of the
contention that it was not open to the judiciary to
scrutinise the exercise of the “mercy” power, and much
stress was laid on the observations in Michael De Freitas
also called Michael Abdul Malik v. George Ramoutar and Ors.,
[1975] 3 W.L.R. 388, 394., in Bandhua Mukti Morcha v. Union
of India, [1984] 2 S.C.R. 67, 161 and in Rai Sahib Ram
Jawaya Kapur and Ors. v. The State of Punjab, 11955] 2
S.C.R. 225, 235-6.
It seems to us that none of the submissions outlined
above meets the case set up on behalf of the petitioner. We
are concerned here with the question whether the President
is precluded from examining the merits of the criminal case
concluded by the dismissal of the appeal by this Court or it
is open to him to consider the merits and decide whether he
should grant relief under Art. 72. We are not concerned with
the merits of the decision taken by the President, nor do we
see any conflict between the powers of the President and the
finality attaching to the judicial record, a matter to which
we have adverted earlier. Nor do we dispute that the power
to pardon belongs exclusively to the President and the
Governor under the Constitution. There is also no question
involved in this case of asking for the reasons for the
President’s order. And none of the cases cited for the
respondents beginning with Mohinder Singh (supra) advance
the case of the respondents any further. The point is a
simple one, and needs no elaborate exposition. We have
already pointed out that the Courts are the constitutional
instrumentalities to go into the scope of Art. 72 and no
attempt is being made to analyse the exercise of the power
under Art. 72 on the merits. As regards Michael de Freitas,
(supra), that was, case from the Court of Appeal of Trinidad
and Tobago, and in disposing it of the Privy Council
observed that the prerogative of mercy lay solely in the
discretion of the Sovereign and it was not open to the
condemned person or his legal representatives to ascertain
the information desired by them from the Home Secretary
dealing with the case. None of these observations deals with
the point before us, and therefore they need not detain us.
Upon the considerations to which we have adverted, it
appears to us clear that the question as to the area of the
President’s power under Article 72 falls squarely within the
judicial domain and can be examined by the court by way of
judicial review.
The next question is whether the petitioner is entitled
to an oral hearing from the President on his petition
PG NO 1116
invoking the powers under Article 72. It seems to us that
there is no right in the condemned person to insist on an
oral hearing before the President. The proceeding before the
President is of an executive character, and when the
petitioner files his petition it is for him to submit with
it all the requisite information necessary for the disposal
of the petition. He has no right to insist on presenting an
oral argument. The manner of consideration of the petition
lies within the discretion of the President, and it is for
him to decide how best he can acquaint himself with all the
information that is necessary for its proper and effective
disposal. The President may consider sufficient the
information furnished before him in the first instance or he
may send for further material relevant to the issues which
he considers pertinent, and he may, if he considers it will
assist him in treating with the petition, give an oral
hearing to the parties. The matter lies entirely within his
discretion. As regards the considerations to be applied by
the President to the petition, we need say nothing more as
the law in this behalf has already been laid down by this
Court in Maru Ram’s case (supra).
Learned counsel for the petitioners next urged that in
order to prevent an arbitrary exercise of power under Art.
72 this Court should draw up a set of guidelines for
regulating the exercise of the power. It seems to us that
there is sufficient indication in the terms of Art. 72 and
in the history of the power enshrined in that provision as
well as existing case law, and specific guidelines need not
be spelled out. Indeed, it may not be possible to lay down
any precise, clearly defined and sufficiently channelised
guidelines, for we must remember that the power under
Article 72 is of the widest amplitude, can contemplate a
myriad kinds and categories of cases with facts and
situations varying from case to case. in which the merits
and reasons of State may be profoundly assisted by
prevailing occasion and passing time. And it is of great
significance that the function itself enjoys high status in
the constitutional scheme.
Finally, an appeal was made by Shri Shanti Bhushan to us
to reconsider the constitutional validity of the statutory
provisions in the Indian Penal Code providing for the
sentence of death. The learned Attorney General, with his
usual fairness did not dispute Shri Shanti Bhushan’s right
to raise the question in this proceeding. Shri Shanti
Bhushan has laid great emphasis on the dissenting judgment
in Bachan Singh v. State of Punjab, [ 1983] 1 SCR 145. We
have considered the matter, and we feel bound by the law
laid down by this Court in that matter. The learned Attorney
General has drawn our attention to the circumstance that
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only six sections, 120B, 121, 132, 302, 307 and 396, of the
Indian Penal Code enable the imposition of the sentence of
death, that besides the doctrine continues to hold the field
that the benefit of reasonable doubt should be given to the
accused, and that under the present criminal law the
imposition of a death sentence is an exception (for which
special reasons must be given) rather than the rule, that
the statistics disclose that a mere 29 persons were hanged
when 85,000 murders were committed during the period 1974 to
1978 and therefore, the learned Attorney General says, there
is no case for reconsideration of the question. Besides, he
points out, Articles 21 and 134 of the Constitution
specifically contemplate the existence of a death penalty.
In the circumstances, we think the matter may lie where it
does.
In the result, having regard to the view taken by us on
the question concerning the area and scope of the
President’s power under Article 72 of the Constitution, we
hold that the petition invoking that power shall be deemed
to be pending before the President to be dealt with and
disposed of afresh. The sentence of death imposed on Kehar
Singh shall remain in abeyance meanwhile.
These Writ Petitions and the Special Leave Petition are
concluded accordingly.
M.L.A. Petitions disposed of