NEW DELHI: Oct 25, (PTI): Legal experts are generally of the view that the President can deal with the petition of condemned convict Kehar Singh as advised by the Union Cabinet though a few feel that he can grant clemency on his own.

Noted jurist Dr. L.M. Singhvi says that the law, laid out clearly in provisos under Article 74, provides for Council of Ministers to aid and advise the President who shall act in accordance with such advice.

‘The President can ask the Government to reconsider its decisions but he will be bound finally by any reconsidered decisions, he says.

Dr. Singhvi said under the constitution provisions, the President if satisfied that Kehar Singh’s case on any particular aspect or in general terms needed for consideration he could ask for a second opinion. But any such advice was legally binding on him.

Kehar Singh has made known his wish that the President grant a hearing to his counsel, Mr. Ram Jethmalani to present his case on his mercy petition for commutation of death sentence.

A senior judicial officer, who did not want to be identified was, however, of the opinion that though Mr. Venkataraman was bounded by the Constitution to seek the advice of the Council of Ministers, he could take a decision on commutation on his own.

Kehar Singh’s counsel Mr. Ram Jethmalani feels that the President is bound both by law and convention to act on the aid and advice of the Government as India’s parliamentary system was based on the British model.

Under the British system the Crown which is comparable to the President and Governors in India has retained certain of its prerogative powers as “fountain of justice” in the field of administration of justice. One such area is the prerogative of mercy exercised by the crown on the advice of the Home Secretary.

Under the British system the power to recommend special remission of all or part of the penalty imposed by the court is normally used for reasons unconnected with the merits of the conviction for example, to release a dying prisoner.

Occasionally it may be used where new information casts doubts on the rightness of a conviction but the case is not suitable for reference to the court of appeal.

A free pardon in which a conviction is to be disregarded is normally recommended when there are not merely doubts about the defendant’s guilt but convincing grounds for thinking that he was innocent and this means “morally as well as technically innocent”…In practice however, the prerogative of free pardon is more freely used in respect of cases tried summarily than on indictment.

According to Article 72 of the Indian Constitution the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the punishment of sentence is by a court martial.

The President can also use his power under the Article 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 or in all cases where the sentence is a sentence of death.

The issue of whether the President has the power to act in his personal capacity under powers vested by the Constitution in several areas including the question of commutation of death sentence has been dealt with exhaustively in Shamshwer Singh’s state of Punjab by a seven judge Supreme Court bench in 1974.

The bench unanimously held that the President as well as the governor acted on the aid and advice of the Council of Ministers in executive action and was not required by the Constitution to act personally without the aid and advice of his Council of Ministers or against them

The President the bench held could only act in his personal capacity in a few well known and exceptional cases like the choice of Prime Minister and Chief Ministers the dismissal of Governments which had lost majority and dissolution of the House.

Justice V.R. Krishma Tyer, in his separate judgment, has observed that if the logic that the President could act in his personal capacity on the wide range of powers conferred by the Constitution, the court would be compelled to hold that there “are two parallel authorities exercising powers of governance of the country as in the diarchy days. The Cabinet will shrink at Union and State levels in political and administrative authority and having solemn regard to the gamut of his powers and responsibilities the head of state will be a reincarnation of Her Majesty’s Secretary of State for India untroubled by even the British Parliament—a little taller, in power that the United States President.

Article extracted from this publication >> November 11, 1988