This case summary is written by Dhairya Gawde. She is an Intern under Content Team Legal Thirst.
Kehar Singh & others v. Union of India, also known as the famous Indira Gandhi case revolves around constitutional impropriety. Kehar Singh was penalised for the offence under sections 120B and 302 of the Indian Penal code, 1860, in accordance with the assassination of Indira Gandhi, who was the Prime Minister at the time. He was condemned at the trial stage by the Session Court, and all of his appeals to the higher court were failed, by the method of dismissals. On application to the President for the grant of pardon under Article 72, it was pleaded that the guilty verdict was inaccurate and erroneous, and it had been a prayer for a plea of clemency. It had also been urged that they be granted a chance of oral hearing. The President refused to grant pardon, with the reasoning that they cannot get into the merits of the case that has been determined by the Apex Court. The petitioner was not granted an oral hearing. The main issue raised is whether or not the President is precluded from stepping into the merits of a case decided by the Supreme Court.
FACTS OF THE CASE
Kehar Singh was an Assistant in the Directorate General of Supply and Disposal, situated in New Delhi. He was accused of conspiracy in the killing of the then Prime Minister, Smt Indira Gandhi on the 31st of October, 1984. Two years later on 22 January 1986, Kehar Singh was convicted of an offence under Section 120-B read along with Section 302 of the Indian Penal Code. He was sentenced to death by the Additional Sessions Judge in New Delhi. He appealed to challenge the death sentence which was declined by the Delhi High Court. Further, a subsequent appeal was made to the Supreme Court by way of a Special Leave Petition, however, the same was also dismissed. Additionally, a review petition and writ petition were also dismissed. A few days later the son of Kehar Singh, named Rajinder Singh, presented a petition to the President of India for the grant of pardon to Kehar Singh under Article 72 of the Constitution of India based on the grounds that he was innocent and the verdict of the Courts was erroneous. The Petition also included a prayer that the representatives of Kehar Singh should be given a chance to see the President in person and explain to him the whole situation. The Counsel of Kehar Singh also wrote several e-mails to the president regarding the same. In response, the President rejected the petition under Article 72 of the Constitution by saying that he cannot go into the merits of a case that has been decided by the Hon’ble Supreme Court of India. After the rejection of the mercy petition, Rajinder Singh filed the Petition before the Delhi High court praying for preventing the respondent from executing the sentence of death but the same was dismissed. Immediately upon this dismissal, petitioners moved the Supreme Court by filing Special Leave Petition under Article 32 and the court decided to entertain the writ petition and directed that the execution of Kehar Singh should not be carried out in the meantime.
ISSUES OF THE CASE
A written petition and special leave petition are filed by the applicant under Article 32 of the Constitution of India, raising the question that does the President by virtue of Article 72 enjoys the power or does he have the power to hear a case on its merits when the case has already been decided by the Supreme Court of India. The petitioner further questioned the extent of the power of the President under Article 72 of the Indian Constitution. In addition to this, the petitioner also urged that is he entitled to an oral hearing from the President in his petition, by the virtue of invoking the powers under Article 72 of the Indian Constitution.
- The President had not applied his mind to the mercy petition that had been filed.
- The plea was that the evidence on which Kehar Singh was to be hanged was circumstantial and erroneous.
- The case is one deserving the grant of relief falling within the discretionary powers of the president.
- The President is entitled to go into the merits of the case notwithstanding that it has been judicially decided by the Apex Court.
- It was also pleaded that guidelines may be laid down for regulating the exercise of the power of pardon in order to prevent its arbitrary use.
- The Attorney General had put forward that the power exercised under Article 72 is not justiciable.
- He urged that the power to grant clemency is exclusively within the province of the President.
- He pointed out that the power given to the President is not hampered and interfered with and the power proceeds on the advice which is tendered by the Executive to the President.
- This advice must be free from limitations, and if the President gives no reasons for his order, the Court cannot ask about the reasons for the same.
- The President is entitled to go into the merits of the case, regardless of the fact that it has been judicially concluded by the consideration given to it by this Court.
- The question as to the area of the President’s power under Article 72 falls directly within the judicial domain and can be examined by the court by way of judicial review.
- There is no right for the sentenced person to insist on an oral hearing before the President.
- The sentence of death directed towards Kehar Singh shall remain in abeyance.
- The petition was disposed of by the Supreme Court.
CRITICAL ANALYSIS AND PERSONAL OPINION
There are statistics that show that 5106 mercy petitions were filed by convicts on death row between 1947 and 2015, out of that 69 per cent were rejected. Also, 76 per cent of the prisoners among those condemned belong to socially and economically weaker backgrounds. One will clearly infer that access to resources, general awareness, legal access, recognition of their own rights, etc. is an element of information that’s not accessible by all. This makes the system inherently inclined in favour of individuals that have extensive access, or political or economic clout. This puts us in a position to question the whole system of mercy. While we can say that act of mercy comes from a decent place, one amongst benevolence, acceptance, and recognition in rehabilitation. However, the sensible use of this power, particularly once there’s advocated by support driven by majoritarian tendencies to refuse pardon, like within the case of Afzal Guru. This clemency is a constitutional obligation but is used as a discretionary power affected by acts of favouritism or political favours which raises the question of whether this should exist at all.
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