Presidents power under Art.72 not an extension of judicial power.

K.G.Balakrishnan, C.J.: Petitioner claims to be a public spirited citizen and he is the former General Secretary of the Student Wing of Indian National Congress Party for Tamil Nadu State and he is associated with the activities of that organisation. Petitioner alleges that in the case relating to the murder of the late Prime Minister Rajiv Gandhi, some of the accused have been found guilty by the Honourable Supreme Court and four of them were sentenced to death and these four persons have submitted their mercy petitions before the President of India and the same are pending consideration. The petitioner herein would contend that the members of the various political organisations are campaigning against the imposition of death penalty and prayed that the President shall use his discretionary power for granting pardon. This, according to the petitioner, is illegal interference with the presidential power and therefore, there shall be a writ of mandamus to the effect that the respondents 1 and 2 shall enforce the law in the State of Tamil Nadu and shall initiate suitable action in accordance with law against the persons for publishing any statement or appeal in newspapers or organising processions or meetings seeking favourable orders on the mercy petitions filed by the accused persons, which are pending consideration before the President.

2. We heard petitioner in person.

3. According to the petitioner, the Presidential power for granting pardon is exercised on the aid and advice of the Council of Ministers and this is also a part of the judicial process and therefore, it shall not be interfered wit by others. The petitioner has also contended that the Supreme Court being the highest court of the land, has given the verdict that the four accused have been sentenced to death and any complaint against such imposition of penalty is against the process of law and therefore, the law enforcing authorities shall proceed against them. We do not think that such contention is correct. In a democratic country like India, every citizen has got freedom of expression, which is guaranteed under Art.19(1)(a) of the Constitution. Every citizen has got a right to express his views and publish the same through the medium of press. Every citizen has also got a right to create the public opinion in respect of any subject. That does not amount to interference with the exerrising of the presidential powers under Art.72 of the Constitution for granting pardon. We do not think that campaigning against the death penalty would amount to violation of the principles of law and we do not think that it will amount to unlawful interference with the presidential power. We do not think that it is proper to direct the respondents to initiate any action against such persons as it was amounts to interference with their fundamental rights of the citizen.

4. Another contention advanced by the petitioner is that the power of the President under Art.72 is judicial power and it is an extension of the judicial proceedings. This contention is also devoid of merits. This question came up for consideration by the Supreme Court in Kehar Singh v. Union of India, (1989)1 S.C.C. 204: A.I.R. 1989 S.C. 653. The Supreme Court explained the nature of the power of the President under Art.72 of the Constitution and it is held follows:

“The power to pardon is a part of the Constitutional scheme and is not an act of grace as in England. 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. The legal effect of a pardon is wholly different from a judicial supersession of the original sentence. The President 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, notwithsta

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