Author:- Shadrack Chai Chivatsi, a law student at University of Nairobi

Edited by:- Rutvij Vyas, a law student at the Faculty of Law, GLS University

ABSTRACT / HEADNOTE 

• In this case, the Indian Supreme Court clearly discussed the President’s power under Article 72 of the Constitution of India to grant pardons in a Criminal offence (murder). Kehar Singh (plaintiff) was found guilty of participating in the assassination of Prime Minister Indira Gandhi. He was given a death sentence after going through all the valid legal processes. Filed his plea for clemency but it was rejected by the President of India.
  The main legal issue was whether the President’s denial of the mercy plea could be legally contested and if the President had a responsibility to hold a face-to-face hearing before making a decision.
  The Court’s ruling confirmed that the President’s authority under Article 72 is a constitutional obligation that courts cannot nullify solely based on the decision unless there is clear evidence of excessively capricious, vindictive, or unlawful behaviour. They stressed that the President has total discretion in this matter and cannot be reviewed by the judiciary.
  The Court also held that the President does not have to conduct a face-to-face meeting before deciding on a mercy plea. Although there is a common custom in place, it does not result in a legal requirement. In the end, the Court confirmed the President’s choice to deny Kehar Singh’s plea for mercy.
  This ruling confirmed the extensive and indisputable scope of the President’s pardoning authority as outlined in the Indian Constitution.

Keywords (Minimum 5): Mercy Petition, Mala Fides, Judicial Review, President Power of    Pardon, Assassination, Death Penalty.

• CASE DETAILS

• INTRODUCTION AND BACKGROUND OF JUDGEMENT

Presidential Pardon is a constitutional right of India provided under Article 72 of the Indian constitution. However, it is not absolute and it is exercised with caution without interfering with the autonomy of separation of powers doctrine. The issue of separation of power has been in contention for a very long time. Who has more decisive power than who? Lord Acton alluded to, perhaps one of the earliest and most influential statements in political and legal thought. He conceives that power tends to corrupt an absolute power corrupts absolutely. 

• FACTS OF THE CASE

• Procedural Background of the Case

• • • • • Kehar Singh was convicted and sentenced to death by the trial court for his involvement in the assassination of Prime Minister Indira Gandhi.
        • Kehar Singh appealed his conviction and sentence to the Supreme Court, but the appeal was dismissed.
        • Kehar Singh then filed a Review Petition in the Supreme Court, which was also dismissed on September 7, 1988.
        • After the Review Petition was dismissed, Kehar Singh’s son filed a Writ Petition before the Supreme Court, which was also dismissed.
        • On October 14, 1988, Kehar Singh’s son presented a petition to the President of India seeking a pardon for Kehar Singh under Article 72 of the Constitution.

• Factual Background of the Case

• Kehar Singh was convicted and sentenced to death under Section 120-B (criminal conspiracy) read with Section 302 (murder) of the Indian Penal Code, in connection with the assassination of the then Prime Minister of India, Indira Gandhi.

• Kehar Singh’s appeal against the conviction and sentence was dismissed by the Supreme Court. His review petition was also dismissed.

• Kehar Singh’s son later filed a petition before the President of India under Article 72 of the Constitution, seeking a pardon for Kehar Singh on the ground that the evidence established his innocence and the court’s verdict was erroneous.

• LEGAL ISSUES RAISED
• Whether the President can enter into the merits of a case decided finally by the Supreme Court?
• Whether the petitioner is entitled to an oral hearing from the President in a petition invoking the powers under Art. 72?
• PETITIONER/ APPELLANT’S ARGUMENTS

• The learned counsels for Petitioner submitted that 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. 
• According to counsel for the petitioner, there was sufficient indication in the terms of Art. 72 and in the history of the power enshrined in that provision as well as existing case laws that were binding, and also specific guidelines needed not be spelled out. 
• They further argued that, it was not possible to lay down any precise, clearly defined and sufficiently channelized guidelines, and the power under Article 72 was 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. They also agreed to the fact that it is of great significance that the function itself enjoys a high status in the constitutional scheme.

• RESPONDENT’S ARGUMENTS

• The learned counsels for Respondent submitted that the President had not declined to consider the evidence presented during the criminal case. However, the court did not agree with this assertion based on the contents of the petition and the copies of the oral evidence provided. 
• The counsel’s argument was challenged by the court’s interpretation of the documents, indicating that the President had not effectively considered the evidence from the criminal case in the context of the pardon petition under Article 72 of the Indian Constitution.

• RELATED LEGAL PROVISIONS

Constitution of India

• Article 72 , “This Article deals with the President’s power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.”

Case Laws

• D. Choudhary v. Union of India, 1991 Supp (1) SCC 600: This case is cited for the proposition that the exercise of the President’s power under Article 72 is not open to judicial review on the merits.
• Maru Ram v. Union of India, (1981) 1 SCC 107: This case is cited for the principle that no guidelines need to be laid down for the exercise of the President’s power under Article 72.
• Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161: This case is cited with regard to the scope of judicial review of the President’s power under Article 72.

Indian Penal Code

• Section 120-B: This section deals with criminal conspiracy. It states that “Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.” 
• Section 302: This section deals with the offense of murder. It states that “Punishment for murder.— Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.”

• JUDGEMENT
  • RATIO DECIDENDI

• The Supreme Court held that the President’s power under Article 72 of the Constitution to grant pardons, reprieves, etc. is a constitutional responsibility that cannot be interfered with by the courts on the merits.
• The court reiterated that the President’s discretion under Article 72 is unfettered and not subject to judicial review, except on limited grounds of arbitrariness, mala fides, or unconstitutionality.
• The Supreme Court rejected the argument that the President should have granted an oral hearing before deciding the mercy petition, stating this was not required by the “well-established practice” regarding such petitions.
• The court upheld the President’s decision to reject the mercy petition filed on behalf of Kehar Singh.

• • OBITER DICTA (IF ANY)

• The Supreme Court observed that the President’s power under Article 72 extends to cases where the judicial process has come to an end.
• The court noted that the President can take into account several factors, including the nature of the crime, the background of the convicted person, and the circumstances of the case, while deciding on a mercy petition.
• The Supreme Court acknowledged the gravity of the crime committed by Kehar Singh in the assassination of the Prime Minister.

• CONCLUSION & COMMENTS

“And it is of great significance that the function itself enjoys high status in the constitutional scheme. The order of the President cannot be subjected to judicial review on its merit”. In Epuru Sudhakar Case the immunity of the pardoning power of governor from judicial review came up. “In every government there are three sorts of power: the legislative; the executive in respect of things dependent on the law of nations; and the executive in regard to matters that depend on civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws and amends or abrogates those that have already been enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.” The President’s dedication to ensuring the law is applied equally deserves acknowledgment. This fundamental legal principle guarantees that every person, regardless of their status or rank in society, undergoes the same legal processes and consequences for their behaviour. This is especially significant in cases of possible human rights violations, which frequently arise from authorities abusing their power.

• REFERENCES