KEHAR SINGH AND ANR. ETC. versus UNION OF INDIA & ANR.

Citation: [1988] SUPP. 3 S.C.R. 1102 · Decided: 16-12-1988 · Supreme Court of India · Bench: R.S. PATHAK · Disposal: Disposed off

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Judgment (excerpt)

A 
KEHAR SINGH AND ANR. ETC. 
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. 
E 
F 
G 
H 
On 14th October, 1988 Kehar Singh's son presented a petition to 
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 
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 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 
leave petition to this Court. 
1102 
r 
,, 
' 
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. 
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. 
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 
D 
E 
on, the accused. In doing so, the President does not amend or modify or 
supersede.the judicial record. The judicial record remains intact, and 
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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 senten

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