Holding

The President may examine the merits and evidence of a case and grant pardon, but the petitioner has no right to an oral hearing and the exercise of Article 72 is not subject to full judicial review on its merits except within the limited scope laid down in Maru Ram v. Union of India.

Summary

Kehar Singh was convicted and sentenced to death for his role in the assassination of Prime Minister Indira Gandhi. After his appeals and a review petition were dismissed, his son petitioned the President under Article 72 for a pardon, claiming innocence and seeking an oral hearing. The President refused both the hearing and the pardon, prompting writ petitions before the Supreme Court. The Court examined whether the President could revisit the merits of a case finally decided by the courts, the scope of his power to scrutinise evidence, and whether an oral hearing was a right of the petitioner. It held that the President may examine the evidence and decide on clemency, but the exercise of this power is not subject to judicial review on its merits except within limited parameters, and there is no entitlement to an oral hearing. Consequently, the petition was deemed pending before the President for fresh consideration and the death sentence was stayed pending that decision.

Issues considered

Whether the President is precluded from entering into the merits of a case finally decided by the Supreme Court when exercising power under Article 72
To what extent the President may scrutinise the evidence and facts of a criminal case in a mercy petition
Whether a petitioner is entitled to an oral hearing before the President in a pardon application
Whether specific guidelines are required for the exercise of the President's power under Article 72

Legislation cited

Code of Criminal Procedures. 401
Constitution of Indias. Article 72, s. Article 74(1)
Indian Penal Code, 1860s. 120-B, s. 121, s. 132, s. 302, s. 307, s. 396

Subjects

Presidential pardonArticle 72Judicial reviewDeath penaltyMercy petitionOral hearingExecutive clemencyConstitutional law

Judgment

A
KEHAR SINGH AND ANR. ETC. r
v.
UNION OF INDIA & ANR.

DECEMBER 16, 1988

B [R.S. PATHAK, CJ., E.S. VENKATARAMIAH,
RANGANATH MISRA, M.N. VENKATACHALIAH,
AND N.D. OJHA, JJ.]

Constitution of India-Art. 72-President's power to go into the ,,
merits of a case finally decided by the courts-Defined-Exercise of '
power-Not open to judicial review on merits-No guidelines need be
C laid down-Convict seeking relief has no right to insist on oral hearing
before the President.

The Supreme Court dismissed an appeal by special leave filed by
Kehar Singh, against his conviction aud sentence of death awarded
D under section 120-B read with section 302 of the Indian Penal Code in
connection with the assassination of the then Prime 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
E
the President of India 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
F 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
G 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 provi-
sions of the Constitution of India. The President of India thereafter
rejected the said petition. Hence these writ petitions aml the special
H
leave petition to this Court.
1102
KEHAR SINGH v. U.0.1. 1103

The main issues involved in the writ petitions and the S.L.P. were: A
(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. B

Disposing of the petitions,

HELD: l(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 C
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; lllOA-B]
..
' W.I. Biddle v. Vuco Perovich, 71L.Ed.1161 referred to.
D
l(ii) TJ,£ power to pardon rests on the advice tendered by the
Executive to the Pres11ient, who subject to the provisions of Art. 74(1) of
the Constitution, must act in accordance with such advice. [lllOB]

Maru Ram v. Union' of India, [1981] 1S.C.R.1196 followed.
E
2(i) It is open to the President in the ~xercise 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 F
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. [llllC-D] G

2(ii) The legal effect of a pardon is wh~lly different from a judi-
cial supersession of the original sentence. It is the nature of the power
which is determinative. [llllG]

Kuljit Singfz__ v. L_t. Governor of Delhi, [1982] 3 S.C.R. 58; Nar H
1104 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
..
I
Singh v. State of Uttar Pradesh, [1955] I S.C;R. 238 and Saraf Chandra
A
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 tiles 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
c argument. [1116A-B]

3(ii) The manner of consideration of the petition lies within the
discretion of the President, and ii is for him to decide how best }le can
acquaint himself with all the information that is necessary for its ptoper
D and effective disposal. The President may consider sufficient the infor-
mation 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. [UI6B-CJ
E
3(iii) As regards the considerations to be applied by the President
to the petition, the law in this behalf has already been laid daw11.bv this
CourtinMaru Ram etc. v. Union of India, [1981] I S.C.R. 11%. [1116D]

4. There is sufficient indication in the terms of Art. 72 and in the
F 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
f
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
G 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-FJ

5. The question as to the area of the President's power under
Article 72 falls squarely within the judicial domain and can be
H examined by the court by way of judicial review. However, the order of ~\
'
KEHAR SINGH v. U.0.1. 1105

· the President cannot be subjected to judicial review on its merits except A
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 constitu-
. tional 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. [II15G; lll3B;C] B

Special Reference No. 1of1964, [1965] 1 S.C.R. 413 at 446; State
of Rajasthan and Ors. v. Union of India, [1978] l S.C.R. 1 at 80-82;
Minerva Mills Ltd. v. Union of India, [1981] l S.C.R. 206 at 286-287;
S.P. Sampath Kumar v. Union of India, [1987] 1 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] 1 S.C.R. 497, referred to. C

Gopal Vinayak Godse v. The State of Maharashtra and Ors.,
[196.1] 3 SCR 440; Mohinder Singh v. State of Punjab, A.I.R. 1976 SC
2299, Joseph Peter v. Staie_of Goa, Daman and Diu, [1977] 3 SCR 771;
Riley and Others v. Attorney General of Jamaica and Another, [1982] 3 D
ALL E.R. 469; Council of Civil Service Unions and Others v. Minister
for the Civil Service, [1984J 3 ALL E.R. 935; Attorney Generalv. Times
Newspapers Ltd., [1973] 3 All E.R. 54; Horwitz v. Connor, Inspector
General of Penal Establishments of Victoria, [1908] 6 C.L.R. 38;
Michael De Freitas also called Michael Abdul Malik v. George
Ramoutar and Ors., [1975] 3 W.L.R. 388, 394, Bandhua Mukti E
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 ques-
tion concerning the area and scope of the President's power under Art. F
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 ;md disposed of afresh. The sentence of death imposed on Kehar
Singh shall remain in abeyance meanwhile. [lll7C-D]

The Constitution of India, in keeping with modern constitutional G
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 pri-
mary organs, institutions and functionaries to exercise the powers pro-
vided in the Constitution. [ll08H; ll09A]
H

j
1106 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

All power belongs to the people, and it is entrusted by them to
r
A
specified institutions and functionaries with the intention of working
Dul, 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
B evident from the paramount position given by the Courts to Art. 21 of
the Constitution. [ll09C]

The Courts are the constitutional instrumentalities to go into the
scope of Article 72. [11 ISE]

ORIGINAL JURISDICTION: Writ Petitions (Crl.) Nos. 526-
c 27 of !988.

(Under Article 32 of the Constitution of India).

Ram Jethmalani, Shanti Bhushan, Ms. Rani Jethmalani, R.M.
O Tewari. P.K. Dey, Sanjay Karol, Ms. Lata Krishnamurthy, Dr. B.L.
Wadhera, Ms. Nandita Jain and Mahesh Jethmalani for the Peti-
tioners. •
K. Parasaran, Attorney General, G. Ramaswamy, Additional
Solicitor General, Ms. A. Subhashini and P. Parmeshwaran for the
E 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
F 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
G 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 a peti-
tion 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
H to the evidence on the record of the criminal case and it was sought to
1108 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
r
A 1988 this Court decided to entertain 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
B 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 I
that when exercising his powers under Art. 72 the President is pre-
C eluded 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 of the cri-
D minal 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 ( 1) of Art. 72 of the Constitution, with which we are
E concerned, provides:

''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 con·
victed of any offence:-
F
(a) in all cases where the punishment or sentence is by a i
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
G executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death".

The Constitution oflndia, in keeping with modern constitutional.
practice, is a constitutive document, fundamental to the governance of
H the country, whereby, according to accepted political theory, the Ii>
;;:, ·f:<-'-

)'·
KEHAR SINGH v. U.0.1. [PATHAK, CJ.I 1109
...
'.~ people of India have provided a constitutional polity consisting of
A
] 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 out, maintaining and operating a con-
stitutional order. The Preambular statement of the Constitution begins
,;·1
with.the significant recital: B

"We, the people of India, having solemnly resolved to con-
\
stitute India into a Sovereign Socialist Secular Democratic
' Republic ..... do hereby adopt, enact and give to our-
selves this Constitution,"
'.~
To any civilised society, there can be no attributes more important
c
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 Constitu-
: tion. 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 D
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 falli-
bility of human judgment being undeniable even in the most trained E
mind, a mind resourced by a harvest of experience, it has been con-
side red 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 F
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 G
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.l. Biddle v. Vuco Perovich, 71 L. Ed. 1161 enun-
... ciated this view, and it has since been, affirmed in other decisions. The
po,wer to pardon is a part of the cons9tutional scheme, and we have no H
1110 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A doubt, in our mind" that it should be so treated also in the Indian
Republic. It has been reposed by the people through the Constitution
ftrthe Head of the State, and enjoys high status. It is a constitutional
r~sponsibility of great significance, to be exercised when occasion
aris.es in accordance with the discretion contemplated by the context.
It is not denied, and indeed it has been repeatedly affirmed in the
B 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 Con- '
stitution Bench of this Court held in Maru Ram v. Union of India,
I1981] l S.C.R. 1196 that the power under Art. 72 is to be exercised on
c 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
D 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 patte Gar-
E land, 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 offen-
F der is as innocent as if he had never committed the offence ...... if
granted after conviction, it removes the penalties and disabilities, and I
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:

G "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 cer-
tainly considerate of circumstances which may properly
mitigate guilt. To afford a remedy, it has always been
H thought essential in popular governments, as well as in
KEHAR SINGH v. U.0.I. {PATHAK, CJ.] 1111
"(
'
monarchies, to vest in some other authority than the courts
A
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. Lt. Governor of Delhi., [ 1982]
3 S.C.R. 58. In actual practice, a sentence has been remitted in the B
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] 1 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
c
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 D
co"nstitutional 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: E

"The judicial power and the executive power over sen-
tences 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 F
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 superses- G
sion of the original sentence. It is the nature of the power which is
determinative. In Sar at Chandra Rabha and Others v. Khagendranath
Nath and Others, [1961] 2 S.C.R. 133 at 138-140, Wanchoo, J. speak-
ing 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 H
.-
1112 SUPREME COURT REPORTS . [1988] Supp. 3 S.C.R.
r
A an appellate or revisional criminal court has the effect of reducing the
sentence passed by a trial court, and after discussing the law re lilting to
th~ power to grant pardon, he said:

" ..... Though, therefore, the effect of an order of remis-
sion is to wipe out that part of the sentence of imprison-
B ment which has not been served out and thus in practice to
reduce the sentence to the period already undergone, in
Jaw the order of remission merely means that the rest of the
sentence need not be undergone, leaving the order of con-
viction by the court and the sentence passed by it untou.-
ched. In this view of the matter the order of remission
passed in this case though it had the effect that the appellant
c was released trom jail before he had served the full sen-
tence 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 ..... "
D
and again:

" ..... Now where the sentence imposed by a trial court is
varied by way of reduction by the appel1ate or revisional
court, the final sentence is again imposed by a court; but
E where a sentence imposed by a court is remitted in part
under section 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 than that
imposed by the court. The order of remission affects the
F execution of the sentence imposed by the court but does
not affect the sentence as such, which remains whai it was
in spite of the order of remission ..... "

It is apparent that the power under Art. 72 elltitles the President to
examine the record of evidence of the criminal case and to determine
.G 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.

H In the course of argument, the further question raised was
KEHAR SINGH v. U.0.J; [PATHAK, CJ.] 1113

whether judicial review extends to an examination of the order passed- A
by the President under Art. 72 of the Constitution. At tqe outset we
think it should be clearly understood that we are confined to the ques-
tion 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 B
Ram, etc. v. Union of India, [1981] 1 S.C.R. 1196 at 1249. The func-
tion of determining whether the act of a constitutional or statutory
;'
functionary falls within the co_nstitutional 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 Refer-
ence No. 1of1964, [1965] 1 S.C.R. 413 at 446, Gajendragadkar, C.J.; C
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 Con- D
stitution ..... "

This Court in fact proceeded in State of Rajasthan and Others v. Union
of India, [1978] 1 S.C.R. lat 80-81 to hold:

" ..... So long as a question arises whether an authority E
under the Constitution has acted within the limits of its
power or exceeded it, it can certainly be decided by the
C0urt. 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 F
of Government, whether it is limited, and if so, what are
'' the limits and whether any action of that branch transgres-
ses s11ch limits. It is for this Court to uphold the Constitu-
tional values and to enforce the Constitutional limitations.
That is the essence of the Rule of Law ..... "
G
and in Minerva Mills Ltd. v. Union of In.dia, [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 H
1114 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A such limits are transgressed or exceeded ..... The Con-
stitution has, therefore, created an independent machinery
for resolving these disputes and this independent Machi-
nery is the .judiciary which is vested with the power of
judicial review ..... "

B 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
c enabling provision and confers no right on any individual to invoke its
protection. The power, he says, can be exercised for political consi-
derations, 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, [1961] l SCR 497 to show that
w)len 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
E power to grant remissions is exclusively within 'the province of the
P-resident. 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
F General says, establishes the non-justiciable nature of the order. Then
he refers to the appointment of Judges by the President as proceeding
j
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 ofGoq, Daman
and Diu, l 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
G Civil Service Unions and O(hers v. Minister for the Civil Service, [1984)
3 AU E.R. 935 besides Attqrney-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
H Review was followed by Horwitz v. Connor, Inspector General of
,, 1'

KEHAR SINGH v. U.O.I. (PATHAK, CJ.] 1115 .!•.

\ Penal Establishments of Victoria, I1908] 6 C.L.R. 38. Reliance was
placed on the doctrine of the division of powers in support of ·the A
contention that it was not.open to the judiciary to scrutinise the exer-
cise of the "mercy" power, and much stress was laid on the observa-
lions 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 B
Ram Jawaya Kapur and Ors. v. The State of Punjab, [1955] 2 S.C.R.
225, 235-6.

It seems to us that noneof 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 c
/·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 at-
' !aching to the judicial record, a matter to which we have adverted D
earlier. Nor do we dispute that the power to pardon belongs exclu-
. sively 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 respon-
dents beginning with Mohinder Singh, (supra) advance the case of the
respondents any further. The point is a simple one, and .needs no dabo-· E
rate 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.
7L. on the merits. As regards Michael de Freitas, (supra), that was a
case from the Court of Appeal of Trinidad and Tobago, and in dispos-
ing it of the Privy Council observed that the prerogative of mercy lay F
solely in the discretion of the Sovereign and it was not open to the
condemned person or his legal representatives to ascertain the infor-
mation 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.
G
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.

.. . next question is whether the petitioner is entitled to an oral
The . H
1116 SUPREME COURT REPORTS · [1988] Supp. 3 S.C.R.

A hearing from the President on his petition 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 proceed-
ing 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 requi-
site information necessary for the disposal of the petition. He has no
B right to insisr on· presenting an oral argument. The manner of consi-
deration 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
C 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).
D
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
Ii existing case Jaw, 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 reniember 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.
F profoundly assisted by prevailing occasion and passing time. And it is of
great significance that the function itself enjoys high status in the con-
stitutional scheme.

Finally, an appeal was made by Shri Shanti Bhushan to us to
reconsider the constitutional validity of the statutory provisions in the
cl 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
H matter. The learned Attorney General has.drawn our attention to the. ,.
---: ·'-' l: """"· ~""° -,.~~'"-.-~:-~1
!" i•

., KEHAR SINGH v. U.0.1. [PATHAK, CJ.] 1117

circumstance that only six sections, 120B, 121, 132, 302, 307 and 396, A
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 · B
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
iths. C

In the result, having regard to the view taken by us on the ques-
tibn 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
D
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 con-
cluded accordingly.
7
M.L.A. Petitions disposed of.

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