By – Kirtika Chakraborty
In Supreme Court Of India
|NAME OF THE CASE
|Kehar Singh Etc vs Union Of India
|1989 AIR 653, 1988 SCR Supl. (3)1102
|DATE OF THE CASE
|December 16, 1988
|Kehar Singh And Anr
|Union Of India
|P Sathasivam, Ranjan Gogoi, N.V. Ramana
|The Constitution Of India 1949, The Indian Penal Code
|Article 21, Article 72 in The Constitution Of India 1949
In the case of Kehar Singh, which is also the subject of this article, the Court went much further. In connection with the assassination of Indira Gandhi, the Prime Minister at the time, Kehar Singh, was found guilty under sections 120B and 302 of the Indian Penal Code. The Additional Sessions Judge found him guilty in the trial stage, and all of his appeals to higher authorities were dismissed. They contended that the guilty verdict was erroneous in a request to the President for a pardoned under Article 72, and it was a petition for clemency. It was also suggested that they be allowed to speak at the oral hearing.
The President refused to issue a pardon, claiming that they could not discuss the merits of a case that had already been decided by the Supreme Court. An oral hearing was also denied to the petitioner. The main question is whether the President is prohibited from commenting on the merits of a Supreme Court case that has been resolved.
On October 31, 1984, Kehar Singh, was an Assistant in the Directorate General of Supply and Disposal in New Delhi, was arrested and charged with conspiring to assassinate the then Prime Minister, Smt. Indira Gandhi. He was sentenced to life in prison. Kehar Singh was convicted of the offence under Section 120-B, along with Section 302 of the Indian Penal Code two years later, on January 22, 1986. The Additional Sessions Judge in New Delhi sentenced him to death. He filed an appeal to overturn the death sentence, but it was dismissed by the Delhi High Court. A later appeal was filed with the Supreme Court through a Special Leave Petition, but it was also rejected. A review petition and a writ petition were later dismissed as well.
After a few days, Kehar Singh’s son, Rajinder Singh, petitioned the President of India for a pardon to Kehar Singh under Article 72 of the Indian Constitution because he was innocent and the Courts’ verdict was erroneous. The Petition also asked that Kehar Singh’s representatives be permitted to meet with the President and explain the matter in person. In support of this, Kehar Singh’s Counsel sent many e-mails to the President.
In response, the President denied the Petition under Article 72 of the Constitution, stating that he cannot get into the merits of a matter that has been determined by the Hon’ble Supreme Court of India. Following the denial of the mercy appeal, Rajinder Singh petitioned the Delhi High Court for an injunction preventing the respondent from carrying out the death sentence, but the Petition was dismissed. Immediately following the dismissal, the petitioners went to the Supreme Court by filing a Special Leave Petition under Article 32. The Court decided to hear the writ petition and ordered that Kehar Singh’s execution be postponed.
Petitioners, in this case, appealed to The Supreme court under Article 32 by filing a Special Leave Petition. While dealing with a petition challenging the President’s rejection of a mercy petition submitted by Indira Gandhi’s assassin, Kehar Singh, the Court accepted the case. It issued an order of disposition of the Petition by considering the President’s power under Article 72 while considering the nature of the President’s authority under Article 72. “Article 72 falls squarely within the judicial domain and can be examined by the court through judicial review,” said the Supreme Court. The Court, however, qualified this conclusion by holding that the President’s order can be subjected to judicial review on the merits when he outrages limitations that are arbitrary or “wholly irrelevant, irrational, discriminatory, or mala fide,” as well as when he enrages regulations that are “wholly irrelevant, irrational, discriminatory, or mala fide.” The decisions in Maru Ram Kehar Singh continue to govern the field. As a result, the current position is that a Presidential Pardon under Article 72 may be subject to judicial review on the grounds outlined in Maru Ram v. Union of India (Maru Ram Kehar Singh). According to Article 161, the Governor’s power of pardon runs concurrently with that of the President under Article 72. Thus several cases based on the exact impact the President’s power of pardon granted according to Article 72. The Supreme Court further held that an individual has no right to insist on an oral hearing before the President, as stated by the Constitution. The Supreme Court of India has taken a similar position to that taken in numerous other cases, made observations in the present case, and then concluded that the death sentence imposed on Kehar Singh should be upheld.
Kehar Singh was convicted of an offence under sections 120-B and 302 of the Indian Penal Code connected with Smt. Indira Gandhi’s assassinated and sentenced to death by the learned Additional Sessions Judge, New Delhi. His appeal was dismissed by the Delhi High Court, special leave was granted to this Court, and a writ petition was eventually rejected by this Court hIs son, Rajinder Singh, petitioned the President of India for Kehar Singh’s pardon under Article 72 of the Constitution.
Kehar Singh’s attorney wrote to the President, demanding an opportunity to bring the issue before him for a hearing in the matter. The President denied the plea under 72, and Kehar Singh was informed of the decision on November 24, 1988.
The following day, December 1 1988, a petition was filed in the High Court of Delhi, asking for an injunction barring the respondents from carrying out the death sentence, and the motion was dismissed in the afternoon of the same day. Following that, file a Special Leave Petition in this Court. This Court decided during the preliminary hearing late in the afternoon of the same day, December 1, 1988, to hear the writ petition and issued an order requiring the execution of meanwhile, Kehar Singh should not be executed.
- Is there justification for the argument that when using his powers Article 72, the President is barred from delving into the merits of a matter that has been determined conclusively by the Supreme Court?
- Whether the President’s directive is open to judicial review.
- Whether guidelines are required, and whether the convict requesting relief has no recourse to appeal insist on an oral hearing with the President
ARGUMENTS FROM THE APPELLANT SIDE
- The President had not decided on the mercy petition.
- The defence claimed that the evidence used to hang Kehar Singh was circumstantial.
- The matter merits the issuance of the relief available under the President’s authority.
- The President has the authority to go into the merits of the case, even if it has been judicially concluded by the attention given to it by this Court.
- It was also argued that criteria for regulating the power of pardon should be established to stop its arbitrary practice.
ARGUMENTS FROM THE RESPONDENT
- The Solicitor General contended that the discretion conferred by Article 72 is not justiciable.
- He argued that the ability to issue remissions belongs only to the President.
- He stated that the power entrusted to the President is not impeded and that the administration is exercised based on the Executive’s counsel to the President.
- The advice must also be without limitations, and if the President does not provide grounds for his order, the Court cannot request them.
- Article 21 in The Constitution Of India 1949
21. Protection of life and personal liberty No person shall be deprived of his life or individual liberty except according to procedure established by law
- Article 72 in The Constitution Of India 1949
“72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases
(1) The President shall have the 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
(a) in all cases where the punishment or sentence is by a 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
(2) Noting in sub-clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being. In force.”
The Court begins by discussing the prerogative nature of pardon as it is viewed in England. Then it specifies that whenever there is a denial of or a threat to the life and personal liberty guaranteed by Article 21, protection must be ensured by committing this power to protect further to a higher authority that can scrutinize the validity of such a threat or denial. This is mentioned to emphasize the significance of safeguarding against judicial error. Furthermore, relying on Mr Justice Holmes’ opinion, the Court states that pardon is not a private act of grace but rather a component of the constitutional structure. This applies to India as well, although, as mentioned in Maru Ram, the power would be exercised on the advice of the federal government.
After establishing the importance of the President’s power, the Court held that in exercising his powers under Article 72, the President must scrutinize the evidence on record, and even if he gets to a different judgment, the President does not edit, modify, or override the court record. He operates on a completely different plane than the courts. On the topic of whether judicial review extends to the President’s order, the Court held that the order could not be submitted to judicial review on its merits, except within the strict confines of Maru Ram, which stressed the necessity of not abusing this power. Concerning whether or not the mercy petitioners will be granted an oral hearing, the Court stated that the decision is solely at the discretion of the President. When filing the Petition, all relevant documents must be supplied, and the President may call for an oral hearing if he so desires.
While the Court is correct in stating that the President’s decision is different from the judiciary’s decision and that mercy granted or any commutation or reprieve given to the petitioner would not modify the court record, it could not address the other concerns effectively.
Upendra Baxi was highly critical of the Court’s decision in this case. In this context, he referred to the Antulay case, which he described as a rediscovery of Article 21. He emphasises the idea in the judgment and states that any activity that violates Article 21, no matter how high an authority committed the violation, must be corrected. The Supreme Court is bound by the article’s guarantee of due process and must reverse its judgement if it contains an error in this regard.
In Kehar Singh, the Supreme Court denied both reconsideration and a writ petition challenging the conviction and sentence. In light of the Antulay decision, which was annulled on the grounds of a violation of Article 21 due process in a case that did not even result in the death penalty, one can only imagine the enormity of the error in dismissing the petitions to the Court, when it involved the life and death of a human being.
A pardon is viewed as an act of mercy, forgiveness, and grace. It is a centuries-old idea that empowers the sovereign Executive to grant amnesty to a guilty person. It was previously attributed to a symbolic power wielded by a god-like king to govern his subject’s life and death. According to Seervai, the power of mercy is necessary because it can “avoid injustice, whether from severe, unjust laws or from judgements that end in injustice; thus, the necessity of putting such power in an authority other than the judiciary has always been acknowledged.”
Furthermore, statistics suggest that 76 per cent of prisoners among those convicted in a specific period come from a socially and economically disadvantaged background. Access to resources, general understanding, legal access, a realisation of one’s rights, and so on are all indicative of information that is not available to all. As a result, the system is fundamentally slanted in favour of persons with extensive access or political or economic clout.
This finds us in an unenviable spot and calls into question the whole mercy system. While we can claim that a compassionate gesture comes from a positive place, one of generosity, acceptance, and recognition in rehabilitation. However, the practical use of this power, mainly when there is populist support driven by majoritarian tendencies to refuse pardon, as in the case of Afzal Guru, or if the only persons able to avail of this remedy (which, while ostensibly a “constitutional obligation” upon the Executive, is instead used as a discretionary remedy to give into acts such as nepotism or democratic nepotism.