JUDGMENT – KEHAR SINGH V. UNION OF INDIA
UNION OF INDIA
INTRODUCTION: on January 1986 Kehar Singh was convicted of an offence under section 12-B read with Section 302 of Indian Penal Code in connecting with the murder of Shrimati Indira Gandhi, The prime Minster of India on 31st October 1984 and was sentenced to death by the learned additional Judge New Delhi.
Facts of Case:
From the decision of trial court appeal was dismissed by the Hight Court of Delhi. He field an appeal by special leave to Supreme Court which was dismissed on 3rd April 1988. Review petition was field there after by Kehar Singh was dismissed on 7th September 1988 on the 14 October his son Rajinder Singh presented a petition to the president of India for grant of pardon to Kehar Singh under Article 72 of Constitution. It was established in the petition that Kehar Singh was innocent and that the verdict of court that Kehar Singh was guilty was erroneous. The petition included a prayer that Kehar Singh’s representative may be allowed to see President in person in order to explain the case concerning him. On 23rd October 1988, Council for Kehar Singh wrote to President requesting an opportunity to present the case before him and for grant of hearing in the matter, a letter dated 31st October 1988 was received from secretary to President referring to the Mercy Petition and mentioning that in accordance with the well established practice in respect of constitution of Mercy petition it has not been possible to accept the request for heaing Therefore the president rejected the petition under article 72 and on 24th of November 1988 kehar Singh was informed of rejection of the petition. On November 1988 Rajinder Singh came to known about the date of execution of kehar Singh has been fixed for 2nd December 1988. He filed a petition in High Court requesting that punishment may not be executed till final decision but it was dismissed immediately upon dismissed. Immediately upon dismissal the petition Council moved it to Supreme Court by special leave. The Court allowed that execution of Kehar Singh not be carried out meanwhile.
- Whether there is jurisdiction for view that’s when exercising his power under Article 72, the president is precluded from entering into the merits of the case decided finally by this Court?
- Whether Judicial review extended to an examination of order passed by president under Article 72 of Constitution?
- Whether the petitioner is entitle to an oral hearing from the president on his petition invoking the powers under Article 72?
First legal Issue: Regarding first legal issue recited in the present case it was decided that under Article 72 the president is entitled 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. president is entitled to go into the merits of case notwithstanding that it has been judicially concluded by the constitution given to it by this Court.
Second legal Issue: Learned Attorney General of India contents that the Power excised under Article 72 is not justifiable. It has also been stated by him that it is not open to the courts to question the manner of its exercise but it was decided that it is the functionary falls within the constitution on legislative conferment of power or it is victualed by self denial or an erroneous appreciation of power. the constitution has therefore created an independent machinery for resolving the dispute and that machinery is judicial which is vested with the power of judicial review upon these considerations. it is clear that article 2 falls squarely within the judicial domain and can be examined by Court by way of judicial reviews.
Third legal Issue: It is considered that there is no right in the condemned personal to insist on oral hearing before the president. when the petitioner filed his petition it is for him to submit it’s all the requisite information necessary for disposal of petition. He has no right to insist on presidency an oral argument. The manner to deal with the petition lives only with the president and it is his discretion that how a matter is to be decided. Leaned Counsel for petitioner also urge that in order to prevent an arbitrary exercise of power under Article 72, this court should draw up set of guidelines for regulating the exercise of power. but practically it is not possible to lay down some specific guidelines because of widest amplitude of Article 72 and also because of various categories of cases prevailing.
DECISION: In the end after all these considerations it was decided that president could not be given direction regarding the manner which how pardoning power is to be used. Neither is he compelled to use it. It is a discretionary power and can’t be asked as a matter of right. In the present case, the petitioner invoking that power shall be deemed to be pending before the president to be dealt with and disposed of a fresh sentence of death imposed o kehar Singh shall remain in abeyance meanwhile.