Constitutional Law Project: Final Draft

Kehar Singh And Anr. Etc vs Union Of India And Anr on 16 December, 1988

SUBMITTED By: UTKARSH RAVI ROLL NO. 144 Sem IV

SUBMITTED To: Mr. ATUL SINHA (ASST. PROFESSOR)

Index Introduction................................................................................................................................3 Judgment....................................................................................................................................4 Later Developments...................................................................................................................8 Significance in Todays Times...................................................................................................9 Conclusion................................................................................................................................11

Introduction Before the Constitution came into force, the law of pardon in India was the same as the one in England since the sovereign of England was the sovereign of India. From 1935 onwards, the law of pardon was contained in Section 295 of the Government of India Act which did not limit the power of the Sovereign. The result was up to the coming into force of the Constitution, the exercise of the Kings prerogative was plenary, unfettered and exercisable as hitherto.1 In the Constitution of India, the power of Presidential Pardon is found in Article 72. It empowers the President to grant pardons, reprieves, respites or remissions of punishment in all cases where the punishment is for an offense against any law to which the executive power of the union extends. The same is also available against sentences of courts-martial and sentences of death. A parallel power is given to the Governor of a state under Article 161. A pardon may be absolute or conditional. It may be exercised at any time either before legal proceedings are taken or during their pendency or after conviction. The rejection of one clemency petition does not exhaust the pardoning power of the President.

Issues Facts On 22 January, 1986 Kehar Singh2 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
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What was the Decision of the case? How was it different from Maru Ram Case? What were the Later developments? Is it Significant in todays times?

[Link]/sol3/[Link]?abstractid=1427237 AIR 1989 SC 653

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 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. 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 refute 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. Judgment The Court explicitly held in that Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review. However the Court qualified this finding by holding that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram. What are these limitations? Considerations that are Arbitrary Wholly irrelevant Irrational Discriminatory Mala fide.

However in Kehar Singh the Court declined to lay down guidelines for the exercise of the power under Article, stating 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. The decisions in Maru Ram Kehar Singh still hold the field and thus the present position is that Presidential Pardon under Article 72 is subject to judicial review on the grounds mentioned in Maru Ram v Union of India3. The attorney General of India urged that the power to grant remissions is exclusively within the province of the President. He pointed 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. Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have indicated above. Political vendetta or party favoritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the [Link] example, if the Chief Minister of a State releases every one in the prisons in his State on his birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness survive. Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise. In the end it was held 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. In Maru Ram's case it was held that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. It is noteworthy that in Kehar Singh's case (supra) the contention that the power of pardon can be exercised for political consideration was unequivocally rejected.
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AIR 1980 SC 2147

In Kehar Singh v. Union of India, Pathak, CJ observed The power of pardon is part of a constitutional scheme and we have no doubt that 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. The court also justifies the existence of a Pardon, by acknowledging the fallibility of human judgment being undeniable even in a supremely legally trained mind and therefore any such errors can be remedied by entrusting power to a higher authority, which shall scrutinize the validity of the threatened denial of life or the continued denial of personal liberty. The Law Commission4 also stressed on the need for the existence of an executive Pardoning Power citing the following as reasons (although not exhaustive) 1. Facts not placed before the court 2. Facts placed before the court but not in a proper manner 3. Facts disclosed after the passing of the sentence 4. Events which have developed after the passing of the sentence. The law commission stated that there is a plethora of other reasons which do not lend themselves to codification and therefore the law commission insisted on retaining the Scope of the pardon prerogative. In Maru ram v. Union of India, the scope of Article 72 was examined. The court opined that faith was to be instilled in the vision of the founding fathers and for such a task it is necessary that rules must be drafted, laying down the guidelines for the exercise of such vast prerogative. The court stated that the proportional rise in power should be accompanied with a proportional rise in responsibility and that any such power must be protected from the capacity of being abused. The Honourable judges provided that the pardoning power can be subject to a review where an executive decision has been made on altogether irrational, arbitrary, unreasonable or mala fide grounds such as discrimination on the basis of religion, caste, colour or political loyalty. Pathak C.J in Kehar Singh states, by means of citing Ex parte William wells [xxx], that the prerogative power can be subjected to judicial review when the circumstances of any case disclose such uncertainties as made it doubtful if there should have been a conviction of the
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Report on criminal punishment, 317-18 (1967)

criminal, or when they are such to show that there might be a mitigation of the punishment without lessening the obligation of vindicatory justice. However unlike Maru Ram the court refrained from laying guidelines stating It seems to us that there are sufficient indications in the terms of Article 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. The court also appraised the position and functionality of the court, stating that it is within the capacity of the judiciary to address any question relating to any act of the executive-whether it falls within the boundaries of the constitutional power so conferred or whether there is an omission of performance of the act or whether there has been flawed understanding of the scope of the power

Later Developments In Swaran Singh v. State of U.P. & Ors.5 a three-Judge Bench held that "this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it." (para 12 at p. 2028) Again in Satpal & Anr. v. State of Haryana & Ors.6 this Court held that the power of granting pardon under Article 161 was very wide and did not contain any limitation as to the time and occasion on which and the circumstances under which it was to be exercised. Since the power is a constitutional power, it is amenable to judicial review on the following grounds: a. If the Governor had been found to have exercised the power himself without being advised by the government, b. If the governor transgressed his jurisdiction in exercising the said power c. If the Governor had passed the order without applying his mind, d. The order of the Governor was mala fide, or; e. The order of the Governor was passed on some extraneous considerations. Further, if the Governor was not aware of general considerations such as period of sentence undergone by the convict, his conduct and behaviour while undergoing sentence and other such material considerations, it would make the order of the Governor under Article 161 arbitrary and irrational. The Constitution Bench in Bikas Chatterjee v. Union of India & Ors7. reiterated the same principles on the extent of judicial review as laid down in Maru Ram (supra) and Satpal (supra). [AIR 1998 SC 2026], [AIR 2000 SC 1702], 7 [(2004) 7 SCC 634]
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In Epuru Sudhakar & Anr. v. Government of A.P. & Ors.8 this Court observed that it was well settled that the exercise or non-exercise of the power of pardon by the President or Governor was not immune from judicial review and limited judicial review was available in certain cases. Significance in Todays Times Ajmal Amir Kasab has been sentenced to death. The case was decided after observing full legal procedure. The Home Minister expressed pride in the fair play and justice dispensed by India s legal system. TV channels went gung-ho over the fact that the state had succeeded in nailing the guilty. Some have questioned the death penalty, preferring a life sentence. It is all very puzzling. After being caught on camera killing people, after personally shooting dead 7 persons including police personnel, after being responsible along with his terrorist gang for the death of 166 victims, was any other verdict for Kasab possible? What, then, is the great achievement of the Indian legal system that made several hearts burst with pride? As for commuting the death penalty to a life sentence, that question simply cannot be entertained as long as capital punishment remains on the statute book. Kasab was sentenced by a Mumbai special court. The death sentence to Kasab must be confirmed by the Bombay High Court (HC). If the sentence is upheld Kasab could appeal to the Supreme Court (SC). Finally he could file a mercy petition before the President of India. The government has assured the public that the entire process would be completed within a year. This observation by the SC came in the course of the Indira Gandhi assassination trial. The SC judgment in that case was very controversial. The sentence to hang Kehar Singh was widely questioned. Kehar Singh was deemed innocent by most people. There was no evidence against him except that he was related to Beant Singh. The families of Beant and Kehar had visited the Golden Temple . This was considered sufficient by the SC to nail Kehar Singh. This decision left a permanent blot on the wisdom of the SC. Earlier the Justice Thakkar Commission Report had suggested that the conspiracy behind Indira Gandhis assassination be probed. The Commission identified one Congress politician as a
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[AIR 2006 SC 3385]

suspect. That politician instead of being probed was rehabilitated by Indira Gandhis son, Prime Minister Rajiv Gandhi. Therefore closure of the conspiracy angle of the case was required urgently. Kehar Singh was made the fall guy to close the chapter and to silence all questions about the unsolved aspects of Indira Gandhis murder. Responsible voices questioned the judgment. Kehar Singhs lawyer Ram Jethmalani requested me to write on the subject in order to influence the President before whom Kehar Singhs mercy petition was pending. Kehar Singh was sentenced to death on 16th December 1988. He was hanged on January 6th 1989. It took less than a month to hang Kehar Singh deemed innocent while it is may take at least one year before Kasab is hanged, if at all. So what is the Home Minister so proud about? Many responsible quarters thought Kehar Singh innocent. Even The Economist of October 29th 1988 wrote: Four years after they killed her, two of Indira Gandhi's presumed assassins are about to hang. In one case, the government may be making a terrible mistake. Commenting on the case former Chief Justice of India (CJI) PN Bhagwati wrote: "The possibility of error in judgment cannot therefore be ruled out on any theoretical considerations. It is indeed a very live possibility and it is not at all unlikely that so long as the death penalty remains a constitutionally valid alternative, the court or the State acting through the instrumentality of the court may have on its conscience the blood of an innocent man". VM Tarkunde, former Mumbai HC Judge remarked that the evidence against Kehar Singh was not sufficient even to hang a dog. He criticized President Venkataraman for rejecting the mercy petition without objection. Indeed, President Venkataraman himself admitted his lapse in his autobiography. He described the decision to hang as being politically motivated. He wrote: Kehar Singhs case raised a few queries in my mind should not the President have discretion to examine any extenuating circumstance and alter the death sentence without the advice of the government? How else can prejudice or partisanship be prevented?9 Most remarkably, the SC itself seemed to suffer from pangs of conscience. Chief Justice RS Pathak who headed the Bench that passed the sentence obliquely urged the President to grant pardon by observing that the Constitutional power of grant of pardon or the executive power of remission does not conflict with the judicial power of passing a judgment.

The Economist

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All this was to no avail. Kehar Singh overwhelmingly considered innocent was allowed to hang because everybody looked the other way. None had the courage to speak the truth. After all, this was related to the murder of Indira Gandhi. Kasabs case is related to the death of 166 innocent people. Contrast the treatment of guilty Kasab with that of innocent Kehar Singh. Will India s judicial system ever have to stand trial?10

Conclusion In Kehar Singh the Court considered the nature of the Presidents power under Article 72 while dealing with a petition challenging the Presidents rejection of a mercy petition by Indira Gandhis assassin, Kehar Singh. The Court explicitly held in that Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review. However the Court qualified this finding by holding that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram. What are these limitations? Considerations that are arbitrary or wholly irrelevant, irrational, discriminatory or mala fide. However in Kehar Singh the Court declined to lay down guidelines for the exercise of the power under Article, stating 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. The decisions in Maru Ram Kehar Singh still hold the field and thus the present position is that Presidential Pardon under Article 72 is subject to judicial review on the grounds mentioned in Maru Ram v Union of India. The power of pardon has thus conclusively been made subject to judicial review. Two extreme cases demonstrate the diametrically opposite position of judicial scrutiny of the power of pardon at present in comparison to that which existed immediately after independence. In Re Channugadu the Madras High Court held that the general pardon by the Governor granted to all prisoners to mark the formation of the State of Andhra Pradesh did not amount to an act of interference with the due and proper course of justice. This is both a good and bad development. It is a good development in so far as it will prevent a misuse of this important constitutional power by unscrupulous politicians in favour of people with power and influence. However it may serve to further increase the burden of cases on the
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The Statesman: Rajinder Puri

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courts and altogether prolong the judicial process. It may also prevent the executive from utilizing this power for reasons that although may not be strictly be in conformity with constitutional principles, may nevertheless be in the interest of the State. Thus, while the trend towards greater judicial scrutiny of the power of pardon is undoubtedly a welcome one, the judiciary must leave the executive with a window of discretion in the exercise of the same. There should be a time frame within which the executive should be asked to decide over cases in order to prevent undue truma to the application and his family members and back logging of cases. An amendment should be brought about in the constitution at the earliest barring the executive from pardoning its own members. Since, that is likely to create a bias, abusive of power and effectively make one a judge in his own cause.11

Bibliography V.N. Shukla, Constitution of India, (10th ed. 2001), Eastern Book Co. H.M. Seervai, Constitutional Law of India, (4th ed. Vol. 2, 2002), Universal Book Traders Dr. J.N. Pandey, Constitutional Law of India, (46th ed. 2009), Central law Agency Basu, Durga Das, Commentary on the Constitution of India, (2008), Lexis-Nexis India

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[Link] %[Link]

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