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Kehar Singh and Anr. Vs. Union of India (UOI) and Anr.
AIR 1989 SC 653, 1989 CriLJ 941, 1989 (1) Crimes 238(SC), 1988 (2) SCALE 1565, 1989 (1) SCALE 242, (1989) 1 SCC 204,  Supp 3 SCR 1102
Hon’ble Judges/Coram: R.S. Pathak, C.J., E.S. Venkataramiah, M.N. Venkatachaliah, N.D. Ojha and Ranganath Misra, JJ.
Date of Decision: 16.12.1988
The Appellant, 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 and was sentenced to death by the learned Additional Sessions Judge, New Delhi, which was affirmed by the High Court of Delhi, and the Supreme Court of India. A Review Petition filed thereafter by Kehar Singh was dismissed and later a writ petition was also dismissed by this Court. Thereafter, his son 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 establish the innocence of the Kehar Singh by affording an opportunity of oral hearing before him. As per the letter from the Secretary to the President referring to the ‘mercy petition’ rejected the request of oral hearing in the light of well-established past practice in respect of consideration of mercy petition and the date of execution of Kehar Singh had been fixed for 2 December, 1988. His son filed a petition in the High Court of Delhi praying for an order restraining from executing the sentence of death, and on the same day the High Court dismissed the petition. Immediately upon dismissal of the writ petition, he moved this Court and subsequently filed Special Leave Petition.
- Whether there is justification for the view that when exercising his powers under Article 72 the President is precluded from entering into the merits of a case decided finally by this Court i.e. area and scope of the President’s power?
- Whether judicial review extends to an examination of the order passed by the President under Article 72 of the Constitution?
- Whether the petitioner is entitled to an oral hearing from the President on his petition invoking the powers under Article 72?
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. 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. To any civilised society, there can be no attributes more important than the life and personal liberty of its members. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State are in most civilised societies regarded seriously and recourse 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 scrutinize 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.
The power to pardon is a part of the constitutional scheme; it should be so treated also in the Indian Republic. 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 open to the President in the exercise of the power vested in him by Article 72 of the Constitution to scrutinize 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. 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.
It is apparent that the power under Article 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. 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.
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, he has to act on the advice of the Central Government which is binding upon him in the light of Maru Ram v. union of India Case, AIR 1980 SC 2147.
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. 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. There is no right in the condemned person to insist on an oral hearing before the President.
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