INTRODUCTION
It is a recognized fact that the life of a person is of utmost importance. But in some cases, the brutality of the crime makes it necessary for the judiciary to give one of the most rigorous punishments i.e. capital punishment. But again, this judgment is also given by a mere human and men can make mistakes. So, the constitution tries to vest an important power of pardoning in the hands of some higher authority such as the President or the Governor.
The president of India has a very unique power under Article 72. This article confers over the president the right to pardon, reprieve, respite, remit or commute the sentence of any person convicted of any offense. A similar power lies with the governor of a state under article 161. But is the power under these articles absolute and not subjected to any condition or review? This is what the case of “Kehar Singh and Anr. Etc. vs Union of India and Anr.” deals with. This case is also famously known as the Indira Gandhi Assassination Case.
BACKGROUND
Kehar Singh was convicted for the assassination of former Prime Minister Indira Gandhi on 31st October 1984. He was given the death penalty under Section 302 of the Indian Penal Code. He appealed in Delhi High Court, filed a special leave petition and also a writ petition but they were dismissed. Afterward his son, Rajinder Singh applied for the pardon power by the President under article 72 of the Indian Constitution. The counsel for him also requested the President to let them present an oral account of the case. But the President, Ramaswamy Venkataraman rejected the plea. On the following day, he petitioned in Delhi High Court to restrain the execution of the sentence but the petition was rejected. Next, he filed Special Leave Petition(special permission that a person takes to be heard against any verdict) that the court accepted & stayed his execution.[1]
ISSUES RAISED IN THE CASE
- Is President prevented from entering into the merits of a case decided by Supreme Court?
- Can the President’s order be reviewed by Judiciary?
- Can a convict insist on oral hearing before president?
JUDGEMENT
It was held that the President must act according to the advice rendered by the executive under Article 74(1). It was also held that the court has the power to determine the constitutionality of an act by any office bearer. For the question of an oral hearing, the court replied that it is within the choice of the President and a convicted person cannot insist on an oral hearing to President. The court also specified its point of view by stating:- that there is no need for laying out specific guidelines for regulating the President’s power and it is not possible to make a set of defined guidelines. Also, the President’s order is not subjected to the review by the Judiciary except the limitations set in the case of “Maru Ram vs. Union of India”. Herein, the court had held that arbitrary, irrational, or discriminatory considerations cannot be considered as the basis of pardon. In such cases, judicial review can come into play. This review is applied by the court in “K.M. Nanavati v. the State of Bombay”, “Swaran Singh vs. the State of UP” and “Satpal v. State of Haryana” to set aside the decision of the president or governor granting pardon to the accused on irrational grounds. In addition to this, the Court said that the President can evaluate the evidence of the case but cannot supersede the records of the judiciary.[2]
THE PRESENT SCENARIO
Recently the Supreme Court has asked the Tamil Nadu governor to look into the issue of granting pardon to A.G. Perarivaln, the assassin of Rajiv Gandhi in 1991. He has been serving a life sentence in the central prison of Puzhal for twenty-nine years. The Tamil Nadu government has informed Supreme Court that the cabinet has already recommended the premature release of all the seven convicts of the Rajiv Gandhi assassination case. Now, it has been over two years but Tamil Nadu Governor, Banwari Lal Purohit is yet to decide on remission.[3] This scenario depicts the need for applying the judgement in the case of “Kehar Singh vs. Union of India”. The governor must now take action advised by the government. The case discussed above clearly points out that the governor must act on the executive’s advice. The gap of two years gives enough time to look into the merits of the case. Therefore, the governor must not delay in using his pardoning power in the right manner.
CONCLUSION & WAY AHEAD
The case of “Kehar Singh vs. Union of India” is significant because the court has taken the opportunity to review the pardoning power of the President under Article 72. This case is also an important tool to interpret the power given to the Governor under article 161.
The case is counted as an important one because in this case, the court outlined the role of advice rendered by the executive in pardoning the power of the President which makes it important even today as in the case of A.G.Perarivalan. It actually came to light that the President or Governor’s power is not absolute and he has to use this power on the advice of the executive. The negative side of the verdict is that it will continue to hold the president as a puppet in the executives’ hands.
The verdict by the court allowing judicial review at least in exceptional cases comes as a boon because it will protect the misuse of the power by the selfish politicians to pardon the rich and influential people. But this check will count as a blessing only if the pending cases of the court are dealt on time. There is no sense in increasing the burden of cases on judiciary without getting proper solution.
It is high time and the higher authorities must balance the powers given by the constitution and maintain the relationship between the executive’s advice and the President’s pardoning power. The President also needs to understand the responsibility that the constitution puts on his shoulders. The decision to pardon the sentence must be taken with utmost care. Even the executive must not give irrational recommendations. Also, many mercy pleas are still pending before the President or Governor. To provide justice, it is important to dispose of these cases early. In the end, it could be concluded that the case’s judgement will be significant only if present lacunae are addressed, otherwise, even the landmark judgements by the apex court will remain merely on paper.
[1] https://www.lawnn.com/kehar-singh-and-anr-etc-vs-union-of-india-and-anr/
[2] http://www.legalserviceindia.com/article/l165-Power-of-Pardon.html
[3] https://indianexpress.com/article/explained/rajiv-gandhi-assassination-case-convict-a-g-perarivalan-6256679
