CASE ANALYSIS OF

KEHAR SINGH V. UNION OF INDIA

BY
Girikshit Sharma
25017703822
Vivekananda School of Professional Studies

CASE RELATED TO PARDONING POWERS OF PRESIDENT IN INDIA

1
 BACKGROUND OF THE CASE

Kehar Singh, an Assistant in the Directorate General of Supply and Disposal, NewDelhi, was
accused of conspiracy in the killing of the then Prime Minister, Smt. Indira Gandhi on 31
October, 1984. Later, after two years, on 22 January, 1986,Kehar Singh was convicted of an
offence under Section 120-B read with Section 302 of the Indian Penal Code. He was
sentenced to death by the Additional Sessions Judge, New Delhi.He appealed to challenge the
death sentence which was rejected by the Delhi High Court. Further, a subsequent appeal was
made to the Supreme Court by means of Special Leave Petition, however, the same was also
dismissed. Later, a review petition and writ petition were also dismissed.

After few days, the son of Kehar Singh, named as 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 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 allowed to
see the President in person and explain to him the whole situation. In furtherance of the same,
the Counsel of Kehar Singh also wrote several e-mails to the president.

In revert; The President rejected the petition under Article 72 of the Constitution by saying
that he cannot go into the merits of a case which is finally 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 restraining the respondent from executing the
sentence of death but the same was dismissed. Immediately upon Dismissal, petitioners
moved to 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 meanwhile.

ISSUES OF THE CASE

2
A written petition and special leave petition is filed by the applicant under Article 32 of the
Constitution of India, raising the question that does the President by virtue of Article 72 enjoy
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
power of the President under Article 72 of 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 the Article 72 of the Indian Constitution.

PETITIONER'S ARGUMENT

a. The President had not applied his mind on the mercy petition.
b. The plea was that the evidence on which Kehar Singh was to be hanged was
circumstantial.
c. The case is one deserving the grant of the relief falling within that power of
president.
d. 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.
e. 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 exercise.

RESPONDENT'S ARGUMENTS

a. The Attorney General argued that the power exercised under Article 72 is not
justiciable.
b. He urged that the power to grant remissions is exclusively within the province of the
President.
c. He pointed out that the power given to the President is not hampered and as the power
proceeds on the advice tendered by the Executive to the President.
d. 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

LAW RELATED TO PARDONING POWERS

3
The power related to pardon is envisaged in “Article 72” and “Article 161” of the Indian
Constitution. Article 72 empowers the President to grant pardons, reprieves, respites or
remissions of punishment The President can exercise these powers in all cases;
● where the punishment or sentence is by a court martial,
● where the punishment or sentence is for an offence against any law relating to a
matter to which the executive power of the Union extends;
● Where the sentence is a sentence of death.
Pardon is an act of mercy and forgiveness. Article 72 depends upon the facts and
circumstances of each particular case1 and the Power of pardon exists to prevent injustice
whether from harsh, unjust laws or from judgments which result in injustice; hence the
necessity of vesting that power in an authority other than the judiciary has always been
recognized. It is considered as an independent power of executive official which is separate
from that of judiciary. The pardoning poweris not absolute in India, since this power shall be
exercised by the President on the aid &advice of Council of Ministers;
The Supreme Court in Shamsher Singh v. State of Punjab2 held that satisfaction as per the
given provision does not equate to personal satisfaction but satisfaction of the Council of
Ministers that are providing aid and advice to the President This opinion was reaffirmed in
the cases of Maru Ram v. Union of India3and this places a limitation on exercise of the
power granted to the President in power. This Pardoning power of President, not only helps
in preventing the unjust, but also helps in securing that no miscarriage of justice takes place.
Article 161 also empowers the Governor of a State to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence against any law relating to a matter to which the executive power of
the State extends, however the Governor does not have power to pardon the death sentence
cases.

COMPARISON OF LAW OF INDIA WITH DIFFERENT NATIONS

Pardoning Power is exercised differently in the countries all over the world. The study of the
legal and practical exercise of the power helps us to understand the law relating to pardon.
This comparative approach confirms that the pardoning power to the head of the State or
chief executive authority is not universal.

1Kuljeet Singh v. Lt. Governor,1982 AIR 774, 1982 SCR (3) 58.
2Shamsher Singh v. State of Punjab, (1974)2 SCC 831.
3Maru Ram v. Union of India, (1981) 1 SCC 107.

4
UNITED KINGDOM:
● In U.K. the mercy was exercise by the Crown in the middle ages, now at present, the
monarch exercises the power on the advice of the Home Secretary.
● According to the Report of the U.K. Royal Commission pardon can be granted where
the Home Secretary feels that despite the verdict of the jury there is a ‘scintilla of
doubt’ about the prisoner’s guilt.
● The pardon may be conditional and comprise of commutation or remission of
sentence. A free pardon usually removes the “pains, penalties and punishment’ which
flow from a conviction for a criminal offence. It does not eliminate the conviction.
● In Defreitas v. Benny4, Lord Deplock said that: “Mercy is not the subject of legal
rights. It begins where the legal rights end. A convicted person has no legal right
even to have his case considered by the Home Secretary in connection with the
exercise of the prerogative of mercy. In rendering his advice to the sovereign, the
Home Secretary is doing something that is often cited as the example of a purely
discretionary act as contrasted with the exercise of a quasi-judicial function”
● The Home Secretary’s decision can in some situations be challenged by judicial
review. In R v. Secretary of State for the Home Department ex parte Bentley,5the
Court held that the formulation of policy for the grant of a free pardon was not
justifiable but a failure to recognize that the prerogative of mercy was capable of
being exercised in many different circumstances and therefore failure to consider the
form of pardon which might be appropriate to meet the present case was
reviewable.In U.K.,judicial review of the power of pardon is extremely restricted in
scope.
● Thus, the Constitutional monarch can pardon or show mercy to a conviction on
ministerial advice in U.K.

UNITED STATES OF AMERICA:

4Defreitas v. Benny, (1976) AC 234.

5R v. Secretary of State for the Home Department ex parte Bentley,[1994] QB 349, [1993] 4 All ER 442, [1994]
2 WLR 101.

5
 ● The Constitution of the United States under Article II, Section 2, Clause I empower
the President with the power to grant reprieves and pardons for offenses against the
United States, except in cases of impeachment.
●  However, this power is available only in case of violation of Federal law and, pardon
in the case of violation of a State law, has to come from the Governor of the State
concerned.
● It includes the power to grant pardons, conditional pardons, commutations of
sentence, conditional commutations of sentence, remissions of fines and forfeitures,
respites and amnesties.
● In Burdick v. United States6the Court upheld an offender’s right to refuse a
Presidential pardon granted in order to compel him to testify in a case which
conflicted with his right against self-incrimination. However, apart from judicial
scrutiny in this area, the power of pardon has been allowed to be exercised freely.
● It is open to the convict to refuse to accept a pardon on the ground that it is more
disgraceful or onerous than the sentence. But there is no such option where the
sentence is remitted or commuted to a lesser punishment, for there is no right to
incarceration guaranteed by the Constitution7.
● Unlike Indian President the American President has the absolute power; such power
cannot be questioned or blocked by the Court or the Congress. In cases of misuse of
such power, the only act which could be done is call for impeachment of the
President. Thus, there is no question of any judicial review.

FRANCE AND GERMANY:

● In France, pardon and act of clemency are granted by President of France who has the
sole discretion and power is non questionable and absolute.
● A German President has pardoning power which he can transfer to someone else such
as the Chancellor or the Minister of Justice.

PAKISTAN:

6Burdick v. United States,236 U.S. 79 (1915).

7Biddle v. Perovich, (1927)214 US 480.

6
 ● Under Article 45 of the Pakistan Constitution, the President has an absolute power to
grant pardon, reprieve, respite & remit, suspend or commute any sentence passed by
any court, tribunal or authority. This power cannot be questioned.

BANGLADESH:
● In the Constitution of Bangladesh, Article 49 confers the pardoning power on the
President. According to this Article, “The President shall have power to grant
pardons, reprieves and respites and to remit, suspend or commute any Sentence
passed by any Court, tribunal or other authority”.
● According to Sections 401 and 402 of the Code of Criminal Procedure, 1898, the
government may suspend, remit or commute the sentence of a person. According to
theConstitution, the President, exercises the prerogative power of mercy in
consultation with or in accordance with the advice of the Prime Minister through the
Ministry of Law and Parliamentary Affairs.
Thus, the pardoning power of different countries have the same purpose to protect innocent
individuals from a judicial error; all countries follow their own procedure of pardoning. The
Constitutional scheme for pardoning in India is on the models followed in U.K. and
U.S.A.There is a similarity in the provision of our Constitution with those of the United
States Constitution in regard to confirmation of power to confer reprieve and pardon. The
President of India has no prerogatives; he has only powers granted and functions enjoined by
the Constitution of India. There being vital distinctions between the two, it is not permissible
to proceed on the presumption that the powers of the President of India are those which are
enjoyed by the British Crown at the present day.

ON ARTICLE 21

The Supreme Court asserted that in matters of life and personal liberty – the two being the
most important attributes in society, the deprivation of which is a serious issue, there is a
paramount need to extend the protection of these rights by delegating the power to an even
higher authority. This seems reasonable enough. There is a need for a pardoning clause as no
institution - including the judiciary- is scrupulous and there is always a chance of fallacy.
This is especially true in the case of capital punishment, where an erroneous verdict by the

7
courts can literally be fatal to the convicted. Thus, resorting to the executive to solve this
problem is fair.

ON EXTENT OF PARDONING POWER

The Supreme Court, have preferred to adopt the view propounded by Holmes, J., in the
context of India. Pathak, CJ, has observed on behalf of a unanimous Court: “The power to
pardon is a part of the constitutional scheme, and we have no 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 in the head of the state and enjoys high status. It is a constitutional
responsibility of great significance, to be exercised when the occasion arises in accordance
with the discretion contemplated by the context.” 8 It has now been judicially clarified that
though the power to pardon is officially vested in the Union Executive, he exercises this
power in the same manner as other power is practiced by him, in accordance with Article
74(1), on the advice of the Council of Ministers. The Apex Court also clarified in Maru Ram
v. Union of India,9 that whenever a decision relating to release or refusal of release is made
by the President then such decision is not his own choice or his independent determination.
“It is fundamental to the Westminster system that the Cabinet rules and the Queen reign
being too deeply rooted as foundational to our system”. “The President is an abbreviation for
the Central Government.” Thus, it signifies here that the President while exercising his mercy
power has to take advice from the Council of Minister along with the assistance from the
Ministry of Home Affairs. 

ON JUDICIALOR EXECUTIVE POWERS

In the present case, the Hon’ble Court observed that it is open to the President in the exercise
of the power vested in him by Article 72 of the Constitution to scrutinise the evidence on the
record of the criminal case and come to a different conclusion from that recorded by the court
with 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 constitutional power, the nature of which is entirely different from the
8W.I. Biddle v. Vuco Perovich,71 L. Ed. 1161.
9Maru Ram v. Union of India,[1981] 1 S.C.R. 1196.

8
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. Benz10, Sutherland, J. observed:

“The judicial power and the executive power over sentences 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 the enforcement of the judgment, but does not alter it qua a judgment”.

ON JUDICIAL REVIEW

The Apex Court has been of the consonant view that executive order under Article 72 ought
to be subject to restrictive judicial scrutiny in light of the method of reasoning that clemency
power under Article 72 is in essence above the judicial review but the procedure by which
power is exercised is under the preview of the judicial review. The Supreme Court is invested
with the power of judicial review and it can be exercised whenever individual rights are
violated. Following are the leading cases in this regard:In Maru Ram v. Union of India11,
where issues were raised about whether the newly created Section 433-A of the Cr.P.C, 1973
violates the power contained under Article 72 and Article 161 of the Constitution of India.
Here, the Court held that the constitutional power contained under Articles 72 and 161 and
statutorily power under Section 433-A are though, seeming to be similar in nature, are in
reality, different. Because, the power which is created under the Criminal Procedure Code
cannot be made equivalent to the prerogative power which is conferred upon the Union and
the State executive by the Constitution. Further Court stated that "their source, strength is
different although the stream may flow to the same bed", and held that Section 433-A cannot
be made invalid as indirectly violative of Article 72 and 161 of the Constitution of India. The
Supreme Court also said that power contained under Article 72 of the Indian Constitution
shall not be arbitrarily or disingenuously be exercised by the executive and in the normal
course of action; the executive must discharge its function in accordance with guidelines for
fair and equal execution of sentence along with the consultation of Council of Ministers only.

10In U.S. v. Benz, 75 L. Ed. 354 at 358.

11Maru Ram v. Union of India, 1981 1 S.C.R. 1196 at 1249.

9
This Hon’ble Court in fact proceeded in State of Rajasthan and Others v. Union of
India12,to hold:

"So long as a question arises whether an authority under the Constitution has acted within the
limits of its power or exceeded it, it can certainly be decided by the Court. 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 of Government, whether it is limited, and if so. What are the limits
and whether any action of that branch transgresses such limits? It is for this Court to uphold
the Constitutional values and to enforce the Constitutional limitations. That is the essence of
the Rule of Law ...." and in Minerva Mills Ltd. v. Union of India13, 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 such PG NO 1114
limits are transgressed or exceeded ..The Constitution has, therefore, created independent
machinery for resolving these disputes and this independent Machinery is the judiciary which
is vested with the power of judicial review....."

ON ORAL HEARING FROM PRESIDENT

The issue of oral hearing raised before the Hon’ble Court held that no prisoner shall have the
right of oral hearing before the President on his petition, by invoking his power under Article
72. Further, Court held that as the matter lies within the discretion of the President and it is
for him to decide how he will deal with the case. Whenever any mercy petition is filed by the
prisoner before the President along with all information, then whatever proceeding takes
place for the disposal of mercy petition are of the executive in character.The matter lies
entirely within his discretion. As regards the considerations to be applied by the President to
the petition, the law in this behalf has already been laid down by this Court in Maru Ram's
case14. The President may in his discretion 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 will assist him in treating with the
petition, give an oral hearing to the parties.

12State of Rajasthan and Others v. Union of India, [1978] I S.C. R. 1.

13Minerva Mills Ltd. v. Union of India,[1981] 1 S. C. R. 206.
14Maru Ram v. Union of India, 1981 1 S.C.R. 1196 at 1249.

10
 JUDGMENT IN A GLANCE

1. 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.
2. 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.
3. There is no right in the condemned person to insist on an oral hearing before the
President.
4. The sentence of death imposed on Kehar Singh shall remain in abeyance.
5. The petition was disposed of by the apex court.

OVERVIEW OF THE JUDGEMENT

In the instant case, petitioners moved to Supreme Court by filing Special Leave Petition
under Article 32.The court accepted the case and passed the order of disposal of petition by
considered the nature of the President’s power under Article 72 while dealing with a petition
challenging the President’s rejection of a mercy petition by Indira Gandhi’s assassination,
Kehar Singh. The Court held 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 can be subjected to judicial review on its
merits when he outrageslimitations that are arbitrary or ‘wholly irrelevant, irrational,
discriminatory or mala fide.’ 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 Governor’s power of
pardon under Article 161 runs parallel to that of the President under Article 72 and thus,
several cases based on the same have a bearing on the Presidential Power under Article 72.
Further, the Apex court held that individual has no right to insist on an oral hearing before the
President. The Hon’ble court has takena similar view as that of many cases and made
observations in the present case and then come to the conclusion that the sentence of death
imposed on Kehar Singh shall remain valid

11
 REFERENCES

● Kuljeet Singh v. Lt. Governor, 1982 AIR 774, 1982 SCR (3) 58.
● Shamsher Singh v. State of Punjab,(1974)2 SCC 831.
● Maru Ram v. Union of India, (1981) 1 SCC 107.
● Defreitas v. Benny, (1976) AC 234.
● R v. Secretary of State for the Home Department ex parte Bentley,[1994] QB 349,
[1993] 4 All ER 442, [1994] 2 WLR 101.
● Burdick v. United States,236 U.S. 79 (1915).
● Biddle v.Perovich, (1927)214 US 480.
● W.I. Biddle v. Vuco Perovich, 71 L. Ed. 1161.
● Maru Ram v. Union of India,[1981] 1 S.C.R. 1196.
● U.S. v. Benz, 75 L. Ed. 354 at 358.
● Maru Ram v. Union of India, 1981 1 S.C.R. 1196 at 1249.
● State of Rajasthan and Others v. Union of India, [1978] I S.C. R.
● Minerva Mills Ltd. v. Union of India, [1981] 1 S. C. R. 206.

12