Kehar
Singh & Anr Vs. Union of India & Anr [1988] INSC 370
(16 December 1988)
Pathak,
R.S. (Cj) 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.
HEAD NOTE:
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.
PG NO
1102 PG NO 1103 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 PG NO 1105 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] PG NO 1106 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]
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 PG NO 1111
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 PG NO 1115 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 PG NO 1117
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.
Back