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Kehar Singh v Union of India : Case Analysis

 Kehar Singh v Union of India : Case Analysis


The Court in Kehar Singh,which is also the main concern of this article, went one step further in this regard. Kehar Singh was convicted of an offence under sections 120B and 302 of the Indian Penal Code, in connection with the assassination of Indira Gandhi, who was the Prime Minister at the time. He was convicted at the trial stage by the Additional Sessions Judge, and all his appeals to higher authorities failed, by way of dismissals. On application to the President for the grant of pardon under Article 72, they pleaded that the guilty verdict was erroneous, and it was a prayer for a plea of clemency. It was further urged that they be granted an opportunity of the oral hearing.

The President refused to grant pardon, with the reasoning that they cannot go into the merits of the case that has been finally decided by the Highest Court. The petitioner was also not granted an oral hearing. The main issue raised is whether the President is precluded from entering into the merits of a case finally decided by the Supreme Court.

Judgement and analysis

The Court, first, goes into the prerogative nature of pardon, as it is considered in England. Then, it states that whenever there is a denial of or a threat to the life and personal liberty enshrined under Article 21, protection must be ensured by entrusting this power to protect further to a higher authority who can scrutinise the validity of such a threat or denial. This is stated to show the importance of safeguarding against judicial error. Furthermore, placing reliance on the opinion of Mr. Justice Holmes, the Court says that the act of pardon is not a private act of grace, but a part of the constitutional scheme. This is also applicable to India, but as stated in Maru Ram, the power would be exercised on the advice of the central government.

After having established the importance of the power vested in the President, the Court opined that the President, in the exercise of his powers under Article 72, must scrutinise the evidence on record and even if he comes to a different conclusion, the President does not amend, modify, or supersedes the judicial record. The plane in which he acts is vastly different from the courts.

On the question of whether judicial review extends to the order passed by the President, the court was of the opinion that the order cannot be subjected to judicial review on its merits, except within the strict limitations of Maru Ram, which spoke to the importance of not exercising this power in a mala fide fashion.

Talking about the question of oral hearing being granted to the mercy petitioners, the Court said that the matter lies entirely in the discretion of the President. When filing the petition, all the relevant documents must be submitted, and if the President sees fit, he can call for an oral hearing.

While the Court is right in pointing out that the decision to be taken by the President is separate from the decision by the judiciary, and that the mercy granted or any commutation or reprieve given to the petitioner would not change the judicial record, it was not able to satisfactorily address the other concerns.

Upendra Baxi was highly critical of the Court’s stance in this case. In this context, he brought up the Antulay case which in his words, was a rediscovery of Article 21. He highlights the principle in the decision and says that any action which manifestly violates Article 21, no matter how high an authority did this act, must be rectified. The Supreme Court itself is bound by the due process guaranteed by the article and has to annul its own decision if it meant an error in this regard.

In Kehar Singh, the Supreme Court not only dismissed a review but also a writ petition against the conviction and sentencing. Seeing this in the light of the Antulay decision, which was annulled on the ground of a due process violation of Article 21, in a case which does not even result in a death penalty, then one can only imagine the enormity of the error in dismissing the petitions to the Court, when it concerned life and death of a human being.


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