JUDGMENT

PATHAK, CJI. :— On 22 January, 1986 Kehar Singh was convicted of an offence under S. 120-B read with S. 302 of the Indian Penal Code in connection with the assassination of Smt. Indira Gandhi, then Prime Minister of India, on 31st 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 3rd August, 1988 : (reported in AIR 1988 SC 1883). 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.

2. On 14th October, 1988 his son, Rajinder Singh, presented a 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 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 Singhs 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 23rd October, 656 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 31st 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 3rd November, 1988 a further letter was addressed to the President by counsel refuting the existence of any practice not to accord a hearing on a petition under Art. 72 and requesting him to reconsider his decision to deny a hearing. On 15th November, 1988 the Secretary to the President wrote to counsel as 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."

3. Thereafter the President rejected the petition under Art. 72, and on 24th November, 1988 Kehar Singh was informed of the rejection of the petition. His son, Rajinder Singh, it is said, came to know on 30th November, 1988 from the newspaper media that the date of execution of Kehar Singh had been fixed for 2nd December, 1988. The next day, 1st December, 1988 he 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 filed Special Leave Petition Crl. No. 3084 of 1988 in this Court along with Writ Petitions Nos. 526-27 of 1988 under Art. 32 of the Constitution. During the preliminary hearing late in the afternoon of the same day, 1st December, 1988 this Court decided to entertain the writ petition and made an order directing that the execution of Kehar Singh should not be carried out meanwhile.

4. 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