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SUPREME COURT OF INDIA
R. S. Pathak, C.J., E. S. Venkataramiah, Ranganath Misra, M. N. Venkatachaliah and N. D. Ojha, JJ.
Kehar Singh and another, etc- Petitioners
versus
Union of India and another-Respondents
Writ Petitions (Criminal) Nos. 526-27 of 1988 connected with S.L.P. (Crl)
No. 3084 of 1988
Decided on 16-12-1988
Certainly. Based on the provided legal document, the key points regarding the Presidential powers under Article 72 of the Constitution are as follows:
The power under Article 72 is to be exercised solely on the advice of the Central Government, as per constitutional requirements, and not by the President independently. The advice given by the Government is binding on the President (!) .
The President has the authority to review and consider the merits of a case, including evidence and facts, even if the matter has been finally decided by the courts. This review does not amount to altering or superseding the judicial record but is a separate constitutional power (!) (!) .
The scope of the President’s power includes examining the evidence on record and coming to a different conclusion regarding guilt or sentence, independent of the judicial decision. This power is distinct from the judicial function and is rooted in constitutional authority (!) (!) .
Judicial review of the President’s exercise of power under Article 72 is limited. Courts can examine whether the President acted within the scope of his constitutional authority but cannot review the merits of the decision itself, except to ensure it was within the constitutional boundaries (!) (!) .
There is no legal right for a condemned individual to a personal or oral hearing before the President. The process is of an executive nature, and the manner of consideration, including whether to provide a hearing, is within the discretion of the President (!) .
The power under Article 72 is of wide amplitude, and specific guidelines for its exercise are not necessary or feasible, given the variety and complexity of cases. The high status of this power within the constitutional scheme underscores its significance (!) .
The President’s exercise of mercy powers is a constitutional function that involves scrutinizing the evidence and circumstances of a case independently, without being bound by judicial conclusions. This power is part of the constitutional scheme and is not an extension of judicial authority (!) (!) .
The scope of the President’s power includes the authority to consider cases where a final court decision has been made, and to exercise clemency or pardon, including remitting sentences or granting pardons, based on the merits of the case and the circumstances involved (!) .
The exercise of the power under Article 72 is not justifiable on the grounds that it is unreviewable; courts have the jurisdiction to examine whether the President has acted within the constitutional limits, but not to assess the merits of the case itself (!) .
In cases involving capital punishment, the process of mercy and pardon remains within the President’s constitutional domain, and the decision to grant or reject clemency is an executive act that can be reviewed only for its constitutional validity, not for its substantive merits (!) .
These points collectively clarify the constitutional nature, scope, and limitations of the President’s powers under Article 72, emphasizing the importance of judicial oversight in ensuring that these powers are exercised within constitutional bounds.
JUDGMENT
R.S. Pathak, C.J.I. - 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.
2. On 14 October, 1988 his son, Rajinder Singh, presented a petition to the President of India for the grant of pardon to Kehar Singh under Article 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 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 23rd 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 3rd Nov., 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 Article 72 and requesting him to re-consider 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 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 Article 72, and on 24th Nov., 1988 Kehar Singh was informed of the rejection of the petition. His son, Rajinder Singh, it is said, came to know on 30th Nov., 1988 from the newspaper media that the date of execution of Kehar Singh had been fixed for 2 December, 1988. The next day, 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 a Writ Petition under Article 32 of the Constitution. During the preliminary hearing late in the afternoon of the same day 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 this writ petition 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.
5. The first question is whether there is justification for the
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