tions Crl Nos
526 27 of 1988
Under Article 32 of the Constitution of India
Ram Jethmalani
Shanti Bhushan Ms Rani Jethmalani RM Tewari PK Dey
Sanjay Karol
Ms Lata Krishnamurthy Dr BL Wadhera
Ms Nandita Jain and Mahesh Jethmalani for the Petitioners
K Parasaran Attorney General G Ramaswamy Additional Solocitor General Ms A Subhashini and Parmeshwaran for the Respondents
The Judgment of the Court was delivered by PATHAK CJ
On 22 January 1986 Kehar Singh was convicted of an offence under section 120 B read with section 302 of the Indian Penal Code in connection with the assassination of Smt
Indira Gandhi then Prime Minister of India on 31 October 1984 and was sentenced to death by the learned Additional Sessions Judge New Delhi
His appeal was dismissed by the High Court of Delhi and his subsequent appeal by special leave Criminal Appeal No 180 of 1987 to this Court was dismissed on 3 August 1988
A Review Petition filed thereafter by Kehar Singh was dismissed on 7 September 1988 and later a writ petition was also dismissed by this Court
On 14 October 1988 his son Rajinder Singh presented petition to the President of India for the grant of pardon to Kehar Singh under article 72 of the Constitution
In that petition reference was made to the evidence on the record of the criminal case and it was sought to be established that PG NO 1107 Kehar Singh was innocent and that the verdict of the Courts that Kehar Singh was guilty was erroneous
It was urged that it was a case for the exercise of clemency
The petition included a prayer that Kehar Singh s representative may be allowed to see the President in person in order to explain the case concerning him
The petition was accompanied by extracts of the oral evidence recorded by the trial court
On 23 October
1988 counsel for Kehar Singh wrote to the President requesting an opportunity to present the case before him and for the grant of a hearing in the matter
A letter dated 31 October 1988 was received from the secretary to the President referring to the mercy petition  and mentioning that in accordance with the well established practice in respect of consideration of mercy petitions it has not been possible to accept the request for a hearing
On 3 November
1988 a further letter was addressed to the President counsel refuting the existence of any practice not to accord a hearing On a petition under article 72 and requesting him to re consider his decision to deny a hearing
On 15 November 1988 the Secretary to the President wrote to counsel is follows Reference is invited to your letter dated November 3 1988 on the subject mentioned above
The letter has been perused by the President and its contents carefully considered
The President is of the opinion that he cannot go into the merits of a case finally decided by the Highest Court of the Land
Petition for grant of pardon on behalf of Shri Kehar Singh will be dealt with in accordance with the provisions of the Constitution of India
Thereafter the President rejected the petition under article 72 and on 24 November 1988 Kehar Singh was informed of the rejection of the petition
His son Rajinder Singh it is said came to know on 30 November 1988 from the newspaper media that the date of execution of Kehar Singh had been fixed for 2 December 1988
The next day 1 December 1988 be filed a petition in the High Court of Delhi praying for an order restraining the respondents from executing the sentence of death and on the afternoon of the same day the High Court dismissed the petition
Immediately upon dismissal of the writ petition counsel moved this Court and subsequently field Special Leave Petition Crl No 3084 of 1988 in this Court along with Writ Petitions Nos
526 27 of 19888 under article 32 of the Constitution
During the preliminary hearing late in the afternoon of the same day 1 December 1988 this Court decided to entertain PG NO 1108 the writ petition and made an order directing that the execution of Kehar Singh should not be carried out meanwhile
Some of the issues involved in these writ petitions and appeal were it seems raised in earlier cases but this Court did not find it necessary to enter into those questions in those cases
Having regard to the seriousness of the controversy we have considered it appropriate to pronounce the opinion of this Court on those questions
The first question is whether there is justification for the view that when exercising his powers under article 72 the President is precluded from entering into the merits of a case decided finally by this Court
It is clear from the record before us that the petition presented under article 72 was specifically based on the assertion that Kehar Singh was innocent of the crime for which he was convicted
That case put forward before the President is apparent from the contents of the petition and the copies of the oral evidence on the record or the criminal case
An attempt was made by the learned Attorney General to show that the President had not declined to consider the evidence led in the criminal case but on a plain reading of the documents we are unable to agree with him
Clause I of Art 72 of the Constitution with which we are concerned provides
The President shall have the power to grant pardon reprieves respites or remissions of punishment or to suspend remit or commute the sentence of any person convicted of any offence a in all cases where the punishment or sentence is by Court Martial b in all cases 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 c in all cases where the sentence is a sentence of death
 The Constitution of India in keeping with modern constitutional practice is a constitutive document fundamental to the governance of the country whereby according to accepted political theory the people of India PG NO 1109 have provided a constitutional polity consisting of certain primary organs institutions and functionaries to exercise the powers provided in the Constitution
All power belongs to the people and it is entrusted by them to specified institutions and functionaries with the intention of working cut maintaining and operating a constitutional order
The Preambular statement of the Constitution begins with the significant recital We the people of India having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic  do hereby adopt enact and give to ourselves this Constitution
 To any civilised society there can be no attributes more important than the life and personal liberty of its members
That is evident from the paramount position given by the Courts to article 21 of the Constitution
These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order and consequently the Legislature the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence
The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and recourse either under express constitutional provision or through legislative enactment is provided to the judicial organ
But the fallibility of human judgment being undeniable even in the most trained mind a mind resourced by a harvest of experience it has been considered appropriate that in the matter of life and personal liberty the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty
The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State
In England the power is regarded as the royal prerogative of pardon exercised by the Sovereign generally through the Home Secretary
It is a power which is capable of exercise on a variety of grounds for reasons of State as well as the desire to safeguard against judicial error
It is an act of grace issuing from the Sovereign
In the United States however after the founding of the Republic a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme
In an opinion remarkable for its erudition and clarity Mr Justice Holmes speaking for the Court in WI Biddle vs Vuco Perovich  enunciated this view and it has since been affirmed in other decisions
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 PG NO 1110 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 occasion arises in accordance with the discretion contemplated by the context
It is not denied and indeed it has been repeatedly affirmed in the course of argument by learned counsel Shri Ram Jethmalani and Shri Shanti Bhushan appearing for the petitioners that the power to pardon rests on the advice tendered by the Executive to the President who subject to the provisions of article 741 of the Constitution must act in accordance with such advice
We may point out that the Constitution Bench of this Court held in Maru Ram vs Union of India  that the power under article 72 is to be exercised on the advice of the Central Government and not by the President on his own and that the advice of the Government binds the Head of the State 
To what areas does the power to scrutinise extend In Ex parte William Wells  the United States Supreme Court pointed out that it was to be used particularly when the circumstances of any case disclosed such uncertainties as made it doubtful it there should have been a conviction of the criminal or when they are such as to show that there might be a mitigation of the punishment without lessening the obligation of vindicatory justice
And in Ex parte Garland  at 370 decided shortly after the Civil War Mr Justice Field observed The inquiry arises as to the effect and operation of a pardon and on this point all the authorities concur
A pardon reaches both the punishment prescribed for the offence and the guilt of the offender and when the pardon is full it releases the punishment and blets out of existence the guilt so that in the eye of the law the offender is as innocent as if he had never committed the offence if granted after conviction it removes the penalties and disabilities and restores him to all his civil rights   The classic exposition of the law is to be found in Exparte Philip Grossman   where Chief Justice Taft explained Executive clemency exists to afford relief from under harshness or evident mistake in the operation or the enforcement of the criminal law
The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt
To afford a remedy it has always been thought essential in popular governments as well as in PG NO 1111 monarchies to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments The dicta in Ex parte Philip Grossman supra was approved and adopted by this Court in Kuljit Singh vs Ll
Governor of Delhi 1982 3 SCR 58
In actual practice a sentence has been remitted in the exercise of this power on the discovery of a mistake committed by the High Court in disposing of a criminal appeal
See Nar Singh vs State of Uttar Pradesh  1955 l SCR238
We are of the view 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 in 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 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 US vs Benz  at 358 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
To reduce a sentence by amendment alters the terms of the judgment itself and is judicial act as much as the imposition of the sentence in the first instance
 The legal effect of a pardon is wholly different from a judicial supersession of the original sentence
It is the nature of the power which is determinative
In Sarat Chandra Rabha and Others vs Khagendranath Nath and Others 196 2 SCR 133 at 138 140 Wanchoo J speaking for the Court addressed himself to the question whether the order of remission by the Governor of Assam had the effect of reducing the sentence imposed on the apellant in the same way in which an order of an appellate or revisional criminal PG NO 1112 court has the effect of reducing the sentence passed by a trial court and after discussing the law relating to the power to grant pardon he said  
Though therefore the effect of an order of remission is to wipe out that part of the sentence of imprisonment which has not been served out and thus in practice to reduce the sentence to the period already undergone in law the order of remission merely means that the rest of the sentence need not be undergone leaving the order of conviction by the court and the sentence passed by it untouched
In this view of the matter the order of remission passed in this case though it had the effect that the appellant was released from jail before he had served the full sentence of three years  imprisonment and had actually served only about sixteen months  imprisonment did not in any way affect the order of conviction and sentence passed by the Court which remained as it was   and again   Now where the sentence imposed by a trial court is varied by way of reduction by the appellate or revisional court the final sentence is again imposed by a court but where a sentence imposed by 1 court is remitted in part under scction 401 of the Code of Criminal Procedure that has not the effect in law of reducing the sentence imposed by the court though in effect the result may be that the convicted person suffers less imprisonment that that imposed by the court
The order of remission affects the execution of the sentence imposed by the court but does not affect the sentence as such which remains what it was in spite of the order of remission  It is apparent that the power under article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power
We are of opinion that 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
In the course of argument the further question raised was whether judicial review extends to an examination of the PG NO 1113 order passed by the President under article 72 of the Constitution
At the outset we think it should be clearly understood that we are confined to the question as to the area and scope of the President s power and not with the question whether it has been truly exercised on the merits
Indeed we think that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram etc
vs Union of India
 at 1249
The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power or is vitiated by self denial on an erroneous appreciation of the full amplitude of the power is a matter for the court
In Special Reference No 1 of 1964  at 446 Gajendragadkar CJ speaking for the majority of this Court observed  Whether or not there is distinct and rigid separation of powers under the Indian Constitution there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution   This Court in fact proceeded in State of Rajasthan and Others vs Union of India 1978 I SC R 1 at 80 81 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 vs Union of India
1981 1 section C R 206 at 286 287 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 an independent machinery for resolving these disputes and this independent Machinery is the judiciary which is vested with the power of judicial review  It Will be noted that the learned Judge observed in SP Sampath Kumar vs Union of India  that this was also the view of the majority Judges in Minerva Mills Ltd vs Union of India supra
The learned Attorney General of India contends that the power exercised under article 72 is not justiciable and that article 72 is an enabling provision and confers no right on any individual to invoke its protection
The power he says can be exercised for political considerations which are not amenable to judicially manageable standards
In this connection he has placed AK Roy etc
vs Union of India and Anr
  before us
Reference has also been made to D KM Nanavati vs The State of Bombay  i961 1 SCR 497 to show that when there is an apparent conflict between the power to pardon vested in the President or the Governor and the judicial power of the Courts and attempt must be made to harmonise the provisions conferring the two different powers
On the basis of Gopal Vinayak Godse vs The State of Maharashtra and Ors   he urges that the power to grant remissions is exclusively within the province of the President
He points out that the power given to the President is untrammelled and as the power proceeds on the advice tendered by the Executive to the President 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 all of which the learned Attorney General says establishes the non justiciable nature of the order
Then he refers to the appointment of Judges by the President as proceeding from a sovereign power and we are referred to Mohinder Singh vs State of Punjab AIR 1976 SC 2299 Joseph Peter vs State of Goa Daman and Diu  as well as Riley and Others vs Attorney General of Jamaica and Another  and Council of Civil Service Unions and Others vs Minister for the Civil Service  besides Attorney General vs Times Newspapers Ltd Our attention has been invited to paragraphs 949 to 951 in 8 Halsbury s Laws of England to indicate the nature of the power of pardon and that it is not open to the Courts to question the manner of its exercise
Reference to a passage in 104 Law Quarterly Review was followed by Horwitz vs Connor Inspector General of Penal Establishments PG NO 1115 of Victoria  Reliance was placed on the doctrine of the division of powers in support of the contention that it was not open to the judiciary to scrutinise the exercise of the mercy power and much stress was laid on the observations in Michael De Freitas also called Michael Abdul Malik vs George Ramoutar and Ors  394 in Bandhua Mukti Morcha vs Union of India   161 and in Rai Sahib Ram Jawaya Kapur and Ors
vs The State of Punjab 11955 2 SCR 225 235 6
It seems to us that none of the submissions outlined above meets the case set up on behalf of the petitioner
We are concerned here with the question whether the President is precluded from examining the merits of the criminal case concluded by the dismissal of the appeal by this Court or it is open to him to consider the merits and decide whether he should grant relief under article 72
We are not concerned with the merits of the decision taken by the President nor do we see any conflict between the powers of the President and the finality attaching to the judicial record a matter to which we have adverted earlier
Nor do we dispute that the power to pardon belongs exclusively to the President and the Governor under the Constitution
There is also no question involved in this case of asking for the reasons for the President s order
And none of the cases cited for the respondents beginning with Mohinder Singh supra advance the case of the respondents any further
The point is a simple one and needs no elaborate exposition
We have already pointed out that the Courts are the constitutional instrumentalities to go into the scope of article 72 and no attempt is being made to analyse the exercise of the power under article 72 on the merits
As regards Michael de Freitas supra that was case from the Court of Appeal of Trinidad and Tobago and in disposing it of the Privy Council observed that the prerogative of mercy lay solely in the discretion of the Sovereign and it was not open to the condemned person or his legal representatives to ascertain the information desired by them from the Home Secretary dealing with the case
None of these observations deals with the point before us and therefore they need not detain us
Upon the considerations to which we have adverted it appears to us clear that 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
The next question is whether the petitioner is entitled to an oral hearing from the President on his petition PG NO 1116 invoking the powers under Article 72
It seems to us that there is no right in the condemned person to insist on an oral hearing before the President
The proceeding before the President is of an executive character and when the petitioner files his petition it is for him to submit with it all the requisite information necessary for the disposal of the petition
He has no right to insist on presenting an oral argument
The manner of consideration of the petition lies within the discretion of the President and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal
The President may 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
The matter lies entirely within his discretion
As regards the considerations to be applied by the President to the petition we need say nothing more as the law in this behalf has already been laid down by this Court in Maru Ram s case supra
Learned counsel for the petitioners next urged that in order to prevent an arbitrary exercise of power under article 72 this Court should draw up a set of guidelines for regulating the exercise of the power
It seems to us that there is sufficient indication in the terms of article 72 and in the history of the power enshrined in that provision as well as existing case law and specific guidelines need not be spelled out
Indeed it may not be possible to lay down any precise clearly defined and sufficiently channelised guidelines for we must remember that the power under Article 72 is of the widest amplitude can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case
in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time
And it is of great significance that the function itself enjoys high status in the constitutional scheme
Finally an appeal was made by Shri Shanti Bhushan to us to reconsider the constitutional validity of the statutory provisions in the Indian Penal Code providing for the sentence of death
The learned Attorney General with his usual fairness did not dispute Shri Shanti Bhushan s right to raise the question in this proceeding
Shri Shanti Bhushan has laid great emphasis on the dissenting judgment in Bachan Singh vs State of Punjab   We have considered the matter and we feel bound by the law laid down by this Court in that matter
The learned Attorney General has drawn our attention to the circumstance that PG NO 1117 only six sections 120B 121 132 302 307 and 396 of the Indian Penal Code enable the imposition of the sentence of death that besides the doctrine continues to hold the field that the benefit of reasonable doubt should be given to the accused and that under the present criminal law the imposition of a death sentence is an exception for which special reasons must be given rather than the rule that the statistics disclose that a mere 29 persons were hanged when 85000 murders were committed during the period 1974 to 1978 and therefore the learned Attorney General says there is no case for reconsideration of the question
Besides he points out Articles 21 and 134 of the Constitution specifically contemplate the existence of a death penalty
In the circumstances we think the matter may lie where it does
In the result having regard to the view taken by us on the question concerning the area and scope of the President s power under Article 72 of the Constitution we hold that the petition invoking that power shall be deemed to be pending before the President to be dealt with and disposed of afresh
The sentence of death imposed on Kehar Singh shall remain in abeyance meanwhile
These Writ Petitions and the Special Leave Petition are concluded accordingly


Summary:
The respondents in the appeals were recognised Export Houses which had been granted Imprest licences for the import of uncut  and unset  diamonds with certain export obligations attached to them
After the due discharge of the export obligations the respondents became entitled to revalidation and endorsement of the said Imprestlicence for import of OGL items
The said Export Houses applied under paragraph 1854 of AM83 policy for revalidation and endorsement of the Imprest Licences
The appellant No 3 the Chief Controller of Imports and Exports rejected this claim of the respondents
Being aggrieved by the aforesaid order of rejection respondents filed writ petitions in the High Court assailing the legality of the orders 2 rejecting their claims and seeking a mandamus to the appel lants to endorse the Imprest Licences
Single Judge of the High Court allowed the writ peti tions and the order was affirmed in appeal by the Division Bench
In the appeals by the Union of India to this Court it was contended on behalf of the appellants that a in the Import Export Policy 1982 83 the entitlement of Registered Export Houses to the facility of revalidation and endorse ment of OGL items under paragraph 184 is subject to and conditioned upon the express limitations contained in clause 7 of paragraph 185 of the Policy and that the High Court was in error in directing revalidation and endorsement without reference to the mandatory prescription provided in the said clause and b that the High Court was in error in ignoring the contentions of the appellants that the respond ents had rendered themselves disentitled to relief on the ground of the inordinate and unexplained delay of one and a half years in the filing of the writ petitions
Disposing of the Appeals the Court HELD la Para 1854 was intended to provide certain incentives to the Export Houses which upon grant of Im prest Licences fulfil their countervailing obligations in the matter of export commitments
The provision is a benefi cial one
8H 9A 1b Clauses 4 and 7 no doubt on their plain wording present certain constructional difficulties and it is possible to take the view that the said clauses are part of an integrated policy scheme providing for certain incen tives to export houses and have to be read together
This view however will unduly restrict the scope of the benefi cial provision
9A C 1c That the conditions in para 1854 of the Policy would not be attracted to the case of Export Houses which are granted Imprest Licences would be a harmonious con struction of clauses 4 and 7 which appears to advance and promote the objects of the policy in Paragraph 1854 and is at all events not an unreasonable view to take of the matter
9B 1d An interpretation which would unduly restrict the beneficial scope of the policy in para 1854 would take away with one hand what the policy of the law gives with the other
9C 3 2a If appellants had raised a specific plea of delay as a bar to the grant of relief and the delays in the present cases having regard to the nature of the subject matter were not inconsiderable it was perhaps necessary for the High Court to have specifically dealt with the plea
The aspect of delay adverted to by the Single Judge was a different one viz the delay in seeking revalidation and endorsement after the issue of the redemption certifi cate and not the delay in the filing of the writ petitions
11D 2b It would therefore he appropriate that the appel lants  appeals before the High Court are remitted to the Appellate Bench of the High Court
If the Appellate Bench is persuaded to view that the delay is satisfactorily explained it may proceed to confirm the orders of the Single Judge subject to the question that the permissibility of the importable items be determined in the light of the pro nouncements of this Court in Rajprakash Chemicals Ltd vs Union of India AIR 1986 SC 1621 and D Navinchandra  Co vs Union of India  If the delay is held by the Appellate Bench to be such as to disentitle the respond ents to relief it will proceed to allow the appeals and dismiss the writ petitions
11F H