Kehar Singh and the Nature of the Pardon Power

In one line

Kehar Singh settles what the pardon power is: an executive power of the widest amplitude, exercised on ministerial advice, which may look at the evidence again without touching the judicial record, and which carries no right to be heard.

In the wording a student can write in an exam: in Kehar Singh v. Union of India, (1989) 1 SCC 204, a Constitution Bench held that the power to pardon is part of the constitutional scheme and is a constitutional responsibility of great significance reposed by the people in the Head of State; that it rests on the advice tendered by the Executive to the President, who, subject to Article 74(1), must act in accordance with that advice; that it is open to the President to scrutinise the evidence on the record of the criminal case and to come to a different conclusion from the court about guilt and sentence, without amending, modifying or superseding the judicial record, because he acts on a wholly different plane under a power whose nature is entirely different from the judicial power; that there is no right in the condemned person to insist on an oral hearing; and that specific guidelines for the exercise of the power need not be spelled out.

Facts

Kehar Singh had been convicted under section 120B read with section 302 of the Indian Penal Code in connection with the assassination of the Prime Minister, and sentenced to death. His appeal by special leave was dismissed, his review petition was dismissed on 7 September 1988, and a writ petition was also dismissed.

On 14 October 1988 his son presented a petition to the President for a pardon under Article 72, on the ground that the evidence on record established that Kehar Singh was innocent and that the courts' verdict was erroneous. The petition asked that a representative be allowed to see the President in person to explain the case. The request for a hearing was refused as not in accordance with the well established practice on mercy petitions. In answer to a further letter, the Secretary to the President wrote that the President was of opinion that he could not go into the merits of a case finally decided by the highest court of the land, and that the petition would be dealt with in accordance with the provisions of the Constitution. The President rejected the petition, and these proceedings followed.

The facts matter because the case decides two things that were in issue on them: whether the President may look at the merits, and whether the petitioner may be heard.

Held

The nature of the power. It is part of the constitutional scheme and should be so treated 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.