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PETITIONER:

KEHAR SINGH AND ANR. ETC.

Vs.

RESPONDENT:

UNION OF INDIA and ANR.

DATE OF JUDGMENT16/12/1988

BENCH:

PATHAK, R.S. (CJ)

BENCH:

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.

HEADNOTE:

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

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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.

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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

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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

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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.

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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]

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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]

JUDGMENT:

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

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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.

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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

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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.

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"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

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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

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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

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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

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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.

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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

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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

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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

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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.

M.L.A. Petitions disposed of