To hang or not to hang-

Kehar Singh and Anr. Vs. Union of India

(AIR 1989 SC 653)

Introduction and facts:

 Kehar Singh, an Assistant in the Directorate General of Supply and Disposal, New
Delhi, was accused of plotting in the killing of the then Prime Minister, Smt. Indira
Gandhi. Subsequently, he was convicted under Section 120B along with Section 302
of the Indian Penal Code. He was sentenced to death by the Additional Sessions
Judge, New Delhi and then he made an appeal to challenge the death sentence which
was dismissed by the Delhi High Court. A subsequent appeal to the Supreme Court by
means of Special Leave Petition was also dismissed and a review petition was also
dismissed.
 Kehar Singh subsequently invoked Article 72 of the Constitution of India and
approached the President to pardon his death sentence. (Article 72 deals with the
powers of the president to grant pardons, etc. and to suspend, remit or commute death
sentences.) The Petition also included a prayer that the representatives of Kehar Singh
should be allowed to see the President in person and explain him the situation. In
furtherance of the same, the Counsel of Kehar Singh also wrote several e-mails to the
President.
 In reply to, the office of the president said that President would not go into the merits
of the case as the case had been finally been decided by the highest Court of the land-
the Supreme Court of India. The petition under Article 72 was rejected by the
President. His son, Rajinder Singh after having learned tis filed a petition before the
high Court of Delhi praying for an order restraining the Respondents from executing a
death sentence. This Petition was dismissed on the very same day itself.
 After being dismissed by the High Court, the Petitioners filed a Special Leave Petition
(under Article 32 of the Indian Constitution) and the Supreme Court decided to hhear
the Petitioners and made an order directing that Kehar Singh should not be executed
in the meanwhile.

The issues that were to be looked by the Supreme Court in this case were:

Issue I- Does the President by virtue of Article 72 enjoy the power or does he have the
power to hear on the merits of the case when the case has already been decided by the
Supreme Court of India?

Issue II- What is the extent of the power granted under Article 72?

Issue III- Is the Petitioner entitled to an oral hearing from the President in his Petition under
Article 72?
Holdings of the Supreme Court:

 While dealing with Issue no. 1, the Court observed that the power of the President
under Article 72 of the Constitution is a constitutional responsibility and should be
exercised when the need arises as per the discretion of the President as he is
considered to be the constitutional head of the state. Furthermore, the power of the
President to grant pardons also rests on the advice of the Prime Minister and the
council of ministers under Article 74(1) of the Constitution.
 While dealing with issue no. 2, the Court held that the President is free to exercise his
powers under Article 72. In the course of doing so, the President can scrutinize the
evidences and come to different conclusions than that of the Court. By doing so, the
President does not amend, modify or supersede the judicial records. The judicial
records remain intact and undisturbed. The President acts under a constitutional
power, the nature if which is completely different from a judicial power.
 The Court while dealing with issue no. 3 said that the person condemned has no right
to insist on oral hearings. The proceedings before the President are of an executive
character. A Petitioner at the time of filing his petition must submit all the necessary
information required for the disposal of the Petition. Thus, the Petitioner has no right
to insist on oral hearings. It is the discretion of the President as to how he would
consider the petition and acquaint himself with the information required for the proper
and effective disposal of the case. Only if the President feels that oral hearing will
assist him in treating the petition he would give a chance of oral hearing to the Parties.
It is completely the discretion of the President.

The Supreme Court dismissed the Petition and upheld the death sentence of Kehar Singh.