Kehar Singh V Union Of India (air 1989 Sc 653) 1h605u

To hang or not to hangKehar Singh and Anr. Vs. Union of India (AIR 1989 SC 653) Introduction and facts: 

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Kehar Singh, an Assistant in the Directorate General of Supply and Disposal, New Delhi, was accused of plotting in the killing of the then Prime Minister, Smt. Indira Gandhi. Subsequently, he was convicted under Section 120B along with Section 302 of the Indian Penal Code. He was sentenced to death by the Additional Sessions Judge, New Delhi and then he made an appeal to challenge the death sentence which was dismissed by the Delhi High Court. A subsequent appeal to the Supreme Court by means of Special Leave Petition was also dismissed and a review petition was also dismissed. Kehar Singh subsequently invoked Article 72 of the Constitution of India and approached the President to pardon his death sentence. (Article 72 deals with the powers of the president to grant pardons, etc. and to suspend, remit or commute death sentences.) The Petition also included a prayer that the representatives of Kehar Singh should be allowed to see the President in person and explain him the situation. In furtherance of the same, the Counsel of Kehar Singh also wrote several e-mails to the President. In reply to, the office of the president said that President would not go into the merits of the case as the case had been finally been decided by the highest Court of the landthe Supreme Court of India. The petition under Article 72 was rejected by the President. His son, Rajinder Singh after having learned tis filed a petition before the high Court of Delhi praying for an order restraining the Respondents from executing a death sentence. This Petition was dismissed on the very same day itself. After being dismissed by the High Court, the Petitioners filed a Special Leave Petition (under Article 32 of the Indian Constitution) and the Supreme Court decided to hhear the Petitioners and made an order directing that Kehar Singh should not be executed in the meanwhile.

The issues that were to be looked by the Supreme Court in this case were: Issue I- Does the President by virtue of Article 72 enjoy the power or does he have the power to hear on the merits of the case when the case has already been decided by the Supreme Court of India? Issue II- What is the extent of the power granted under Article 72? Issue III- Is the Petitioner entitled to an oral hearing from the President in his Petition under Article 72?

Holdings of the Supreme Court: 

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While dealing with Issue no. 1, the Court observed that the power of the President under Article 72 of the Constitution is a constitutional responsibility and should be exercised when the need arises as per the discretion of the President as he is considered to be the constitutional head of the state. Furthermore, the power of the President to grant pardons also rests on the advice of the Prime Minister and the council of ministers under Article 74(1) of the Constitution. While dealing with issue no. 2, the Court held that the President is free to exercise his powers under Article 72. In the course of doing so, the President can scrutinize the evidences and come to different conclusions than that of the Court. By doing so, the President does not amend, modify or supersede the judicial records. The judicial records remain intact and undisturbed. The President acts under a constitutional power, the nature if which is completely different from a judicial power. The Court while dealing with issue no. 3 said that the person condemned has no right to insist on oral hearings. The proceedings before the President are of an executive character. A Petitioner at the time of filing his petition must submit all the necessary information required for the disposal of the Petition. Thus, the Petitioner has no right to insist on oral hearings. It is the discretion of the President as to how he would consider the petition and acquaint himself with the information required for the proper and effective disposal of the case. Only if the President feels that oral hearing will assist him in treating the petition he would give a chance of oral hearing to the Parties. It is completely the discretion of the President.

The Supreme Court dismissed the Petition and upheld the death sentence of Kehar Singh.