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Supreme Court of India
Mukesh Kumar vs Union Of India on 29 January, 2020Author: R. Banumathi
Bench: R. Banumathi, Ashok Bhushan, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (CRIMINAL) D NO.3334 OF 2020
MUKESH KUMAR …Petitioner
VERSUS
UNION OF INDIA AND OTHERS …Respondents
ORDER
R. BANUMATHI, J.
This writ petition has been filed under Article 32 of the
Constitution of India by the petitioner-Mukesh Kumar – a death-row
convict. The petitioner has filed the writ petition challenging the
rejection of his mercy petition by the President of India and seeking
commutation of his death sentence inter alia on the following
grounds:-
(i) Relevant materials were not placed before the
President of India and they were kept out of
consideration while considering the mercy petition;
(ii) The mercy petition was rejected swiftly and there was
Signature Not Verified pre-determined stance and complete non-application
Digitally signed by
MADHU BALA
Date: 2020.01.29
11:31:58 IST
of mind in rejection of the mercy petition;
Reason:
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(iii) Solitary confinement of the petitioner for more than
one and half years due to which the petitioner has
developed severe psychiatric ailments;
(iv) Non-consideration of relevant circumstances like
prisoners’ suffering in the prison and consideration of
extraneous and irrelevant circumstances; and
(v) Non-observance of established rules and guidelines
in considering the petitioner’s mercy petition.
2. The present writ petition relates to rejection of petitioner’s
mercy petition by the President of India. The petitioner is a death-
row convict in Nirbhaya’s case which relates to the gangrape of the
victim in the moving bus in Delhi on the night of 16.12.2012. The
trial court convicted the petitioner and other co-accused by
judgment dated 13.09.2013. The High Court confirmed the death
sentence by its judgment dated 13.03.2014 and the Supreme Court
confirmed the same vide judgment dated 05.05.2017. In the
judgment dated 05.05.2017 in Mukesh and Another v. State (NCT of
Delhi) and Others (2017) 6 SCC 1, this Court after referring to
various judgments and by elaborate reasonings held that there were
no extenuating or mitigating circumstances. Likewise, the trial court
and the High Court have also recorded detailed reasonings that the
incident was brutal and falling within the category of “rarest of rare
cases”. The review petition was heard by the Supreme Court in
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open court and the same was considered and dismissed by
judgment dated 09.07.2018. In the writ petition, the petitioner has
enumerated dates and events right from day of petitioner’s arrest
i.e. 18.12.2012 from his village in connection with FIR No.413/2012
registered at Vasant Vihar P.S. till 14.01.2020 – the date on which
the Supreme Court dismissed the petitioner’s curative petition.
3. According to the petitioner, after exhausting all his remedies,
he has filed mercy petition on 14.01.2020 addressed to the
President of India under Article 72 of the Constitution of India and to
the Lieutenant Governor under Article 161 of the Constitution and
the through the Superintendent, Tihar Jail No.2. The
Superintendent, Tihar Jail No.2 forwarded the petitioner’s mercy
petition along with his nominal roll, latest medical report of the
petitioner, trial court judgment and details of the punishment of the
petitioner to Officer in Charge – Legal, Prison, Tihar Jail for
processing of the petitioner’s mercy petition. The grievance of the
petitioner is that despite a provision for recommendation by the jail
superintendent in nominal roll, the Superintendent (Prison), Tihar
Jail who had the opportunity to observe the petitioner on a daily
basis is the person who is best placed to opine whether the
petitioner has repented and reformed and is eligible for grant of
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pardon. According to the petitioner, his conduct in prison and his
capacity to reform, is a crucial consideration for mercy.
4. It is alleged that within 24 hours of petitioner’s mercy petition,
on 15.01.2020, the Deputy Chief Minister announced that the
Government has recommended the rejection of the mercy petition of
the petitioner and sent it to the Lieutenant Governor. The petitioner’s
mercy petition was rejected by respondent No.1 – Lieutenant
Governor on 15.01.2020. On 16.01.2020, respondent No.2-NCT of
Delhi has recommended the rejection of petitioner’s mercy petition
and the same was forwarded to the President of India. The
petitioner’s mercy petition was rejected by the President of India on
17.01.2020. Pursuant to the rejection of petitioner’s mercy petition,
learned Sessions Judge on 17.01.2020 issued a fresh execution
warrant directing the petitioner to be executed on 01.02.2020.
5. Since the petitioner did not possess any documents pertaining
to the consideration of his mercy petition, on 17.01.2020, petitioner
through his lawyer moved the application before the
Superintendent, Tihar Jail, Secretary Home Department,
Government of NCT and Secretary Home Department, UOI
requesting for all documents pertaining to his mercy petition. On
20.01.2020, petitioner also filed RTI application before the
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Superintendent, Tihar Jail, Secretary Home Department,
Government of NCT and Secretary Home Department, UOI
requesting for supply of all documents pertaining to his mercy
petition. In response to the application moved through petitioner’s
lawyer as well as his RTI application dated 20.01.2020, the
Superintendent, Tihar Jail provided the petitioner with the
documents pertaining to the petitioner’s mercy petition between
20.01.2020 and 23.01.2020.
6. Ms. Anjana Prakash, learned Senior counsel for the petitioner
submitted that power under Article 72 of the Constitution is the
constitutional duty and is to be exercised in the light of the
guidelines and with great care and circumspection. Placing reliance
upon Shatrughan Chauhan and another v. Union of India and others
(2014) 3 SCC 1, it was submitted that while forwarding the mercy
petition, all the relevant documents like case records, judgment of
the trial court, High Court and the Supreme Court should be placed
before the President of India an the Home Ministry is to send their
views within reasonable time. Placing reliance upon communication
from the Superintendent, Tihar Jail dated 14.01.2020, the learned
Senior counsel submitted that as laid down in Shatrughan
Chauhan, the relevant materials had not been placed before the
President of India and the relevant materials had been kept out of
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consideration. The learned Senior counsel inter alia submitted that
in violation of the principles laid down in Sunil Batra v. Delhi
Administration and Others (1978) 4 SCC 494, the petitioner had
been kept in solitary confinement and this aspect has not been
taken into consideration. It was further contended that the
sufferings of the petitioner in the prison during the custody has not
been taken into consideration while considering his mercy petition.
7. Refuting the contention of the petitioner, Mr. Tushar Mehta,
learned Solicitor General submitted that while forwarding the mercy
petition all the relevant materials as laid down in paras 23 and 24.2
of Shatrughan Chauhan have been placed before the President of
India. The learned Solicitor General submitted that all the
guidelines laid down in Shatrughan Chauhan and other judgments
have been substantially complied with. Insofar as the averments of
solitary confinement, the learned Solicitor General submitted that as
per the affidavit of the Director General, Prisons, the petitioner was
only kept in a single room with iron bars open to air and the
petitioner was intermingling with other prisoners as per rules and
the same cannot be equated to solitary confinement. So far as the
averment as to quick rejection of the mercy petition, the learned
Solicitor General submitted that delay in disposal of the mercy
petition may be a ground for consideration of the mercy petition;
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whereas quick consideration of the mercy petition and rejection of
the same cannot be a ground for judicial review of the order of the
President under Article 72 of the Constitution nor does it suggest
that there was pre-determined mind and non-application of mind.
8. We have heard Ms. Anjana Prakash, learned Senior counsel
appearing for the petitioner and Mr. Tushar Mehta, learned Solicitor
General appearing for Union of India and Govt. of NCT of Delhi and
considered their submission and perused the averments made in
the petition.
9. What is impugned in this writ petition is the rejection of petition
under Article 72 of the Constitution of India by the President of India
on 17.01.2020. In this writ petition filed under Article 32 of the
Constitution, the petitioner challenges the order of rejection of his
mercy petition by the President of India inter alia on the various
grounds that the settled principles of consideration of mercy petition
have not been followed.
10. As per Article 72 of the Constitution, the President of India
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. As per Article
72(1)(c) of the Constitution, the power is inclusive of commutation in
cases where the sentence is a sentence of death. Under Article 161
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of the Constitution, similar is the power of the Governor to give relief
to any person convicted of any offence against any law relating to a
matter to which the executive power of the State extends. The
disposal of the petitions filed under Articles 72 and 161 of the
Constitution requires consideration of various factors i.e. the nature
of crime, the manner in which the crime is committed and its impact
on the society and that the time consumed in this process cannot be
characterised as delay. As held in Devender Pal Singh Bhullar v.
State of (NCT of Delhi) (2013) 6 SCC 195 that the disposal of the
mercy petitions filed under Articles 72 and 161 of the Constitution of
India requires consideration of various factors.
11. After referring to Kehar Singh v. Union of India (1989) 1 SCC
204 and other judgments, in Shatrughan Chauhan and another v.
Union of India and others (2014) 3 SCC 1, the Supreme Court
considered the power of the President or the Governor of the State
under Articles 72 and 161 of the Constitution and observing that it is
a constitutional duty, held as under:-
“14. Both Articles 72 and 161 repose the power of the People in the
highest dignitaries i.e. the President or the Governor of a State, as the
case may be, and there are no words of limitation indicated in either of
the two Articles. The President or the Governor, as the case may be, in
exercise of power under Articles 72/161 respectively, may examine the
evidence afresh and this exercise of power is clearly independent of the
judiciary. This Court, in numerous instances, clarified that the executive
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is not sitting as a court of appeal, rather the power of President/Governor
to grant remission of sentence is an act of grace and humanity in
appropriate cases i.e. distinct, absolute and unfettered in its nature.”
…….
19. In concise, the power vested in the President under Article 72 and
the Governor under Article 161 of the Constitution is a constitutional
duty. As a result, it is neither a matter of grace nor a matter of privilege
but is an important constitutional responsibility reposed by the People in
the highest authority. The power of pardon is essentially an executive
action, which needs to be exercised in the aid of justice and not in
defiance of it. Further, it is well settled that the power under Articles
72/161 of the Constitution of India is to be exercised on the aid and
advice of the Council of Ministers.”
12. The manner of exercise of the power under the said Articles is
a matter of discretion. In Shatrughan Chauhan in para (25), the
Supreme Court held that “the manner of exercise of the power
under the said Articles is primarily a matter of discretion and
ordinarily the courts would not interfere with the decision on merits.
However, the courts retain the limited power of judicial review to
ensure that the constitutional authorities consider all the relevant
materials before arriving at a conclusion.”
13. The Supreme Court has taken the consistent view that the
executive orders under Articles 72 and 161 of the Constitution
should be subject to limited judicial review. In Shatrughan Chauhan,
it was held as under:-
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“22. ….. Accordingly, there is no dispute as to the settled legal
proposition that the power exercised under Articles 72/161 could be the
subject-matter of limited judicial review. (Vide Kehar Singh v. Union of
India (1989) 1 SCC 204, Ashok Kumar v. Union of India (1991) 3 SCC
498, Swaran Singh v. State of U.P. (1998) 4 SCC 75, Satpal v. State of
Haryana (2000) 5 SCC 170 and Bikas Chatterjee v. Union of India
(2004) 7 SCC 634.)”
14. The grounds for judicial review of rejection petition under
Article 72 of the Constitution of India by the President of India has
been laid down in Satpal v. State of Haryana (2000) 5 SCC 170
which has been referred to with approval by the Constitution Bench
in Bikas Chatterjee v. Union of India and Another (2004) 7 SCC 634
wherein it was held as under:-
“9. In a Division Bench decision of this Court in Satpal v. State of
Haryana (2000) 5 SCC 170 these very grounds have been restated as:
(i) the Governor exercising the power under Article 161 himself without
being advised by the Government; or (ii) the Governor transgressing his
jurisdiction; or (iii) the Governor passing the order without application of
mind; or (iv) the Governor’s decision is based on some extraneous
consideration; or (v) mala fides. It is on these grounds that the Court
may exercise its power of judicial review in relation to an order of the
Governor under Article 161, or an order of the President under Article 72
of the Constitution, as the case may be.
10. In the case of Maru Ram v. Union of India, the Bench noted that the
power conferred by Article 72 is a high prerogative power vested by the
Constitution in the highest functionary of the Union. The Constitution
Bench has also held that while exercising the power of judicial review the
Court shall keep in mind that where a power is vested in a very high
authority, it must be presumed that the said authority would act properly
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and carefully after an objective consideration of all the aspects of the
matter and further, the higher the power the more cautious would be its
exercise.”
15. Although the decision of the President of India under Article
72 of the Constitution of India is open to judicial review but the
grounds therefore are very limited, the Constitution Bench in Bikas
Chatterjee held as under:-
“8. Although the decision of the President of India on a petition under
Article 72 of the Constitution is open to judicial review but the grounds
therefor are very very limited. In the Constitution Bench decision in Maru
Ram v. Union of India (1981) 1 SCC 107 this Court has held that it is
only a case of no consideration or consideration based on wholly
irrelevant grounds or an irrational, discriminatory or mala fide decision of
the President of India which can provide a ground for judicial review.”
16. In Epuru Sudhakar and Another v. Govt. of A.P. and Others
(2006) 8 SCC 161, it was held as under:-
“34. The position, therefore, is undeniable that judicial review of the
order of the President or the Governor under Article 72 or Article 161, as
the case may be, is available and their orders can be impugned on the
following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly
irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness.
35. Two important aspects were also highlighted by learned amicus
curiae; one relating to the desirability of indicating reasons in the order
granting pardon/remission while the other was an equally more important
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question relating to power to withdraw the order of granting
pardon/remission, if subsequently, materials are placed to show that
certain relevant materials were not considered or certain materials of
extensive value were kept out of consideration. According to learned
amicus curiae, reasons are to be indicated, in the absence of which the
exercise of judicial review will be affected.”
The same view was reiterated in Narayan Dutt and others v. State
of Punjab and another (2011) 4 SCC 353.
17. It is the consistent view taken by this Court that the exercise of
power of judicial review of the decision taken by the President of
India on mercy petition is very limited and the same can be subject
to challenge only on the following grounds:-
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly
irrelevant considerations;
(d) that relevant materials have been kept out of consideration; and
(e) that the order suffers from arbitrariness.
18. In the light of the above principles, let us consider the present
writ petition and the grounds urged by the petitioner, the petitioner
has primarily raised the following grounds to challenge the order of
rejection of the mercy petition:-
(i) non-sending of relevant materials and non-application of mind
and failure to consider relevant circumstances;
(ii) absence of recommendation of the Superintendent, Tihar Jail in
nominal roll;
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(iii) sufferings of the petitioner in the prison;
(iv) solitary confinement;
(v) the petition has been rejected swiftly without application of
mind.
19. Re: Contention: Non-placing of relevant materials before
the President of India and relevant materials were kept out of
the consideration:- Placing reliance upon Shatrughan Chauhan, It
was submitted that the power to commute a death sentence is not
an act of grace but a constitutional responsibility of the President of
India or Governor of a State. It was submitted that all the relevant
documents and materials as laid down in Shatrughan Chauhan
case and other judgments ought to have been placed before the
President of India. Drawing our attention to the communication
dated 14.01.2020 from the Office of the Superintendent, Central
Jail, Tihar, it was submitted that only four documents as stated in
Annexure P/2 viz. (i) Nominal Roll of Mukesh S/o Mange Lal; (ii)
Latest Medical Report; (iii) Trial Court Judgment; and (iv) Details of
Punishments are said to have been forwarded and all the relevant
materials have not been placed before the President. Learned
Senior counsel has submitted that the documents like (i) DNA
Report exhibited by PW 45; (ii) Odontology Report; (iii) Complaint
under Section 154 Cr.P.C.; (iv) Case diary and charge sheet and
such other documents which would prove the innocence of the
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petitioner were not placed before the President and thus the
relevant materials were kept out of the consideration of the
President of India.
20. Considering the question as to the relevant documents to be
placed before the President of India and after referring to Epuru
Sudhakar v. State of A.P. (2006) 8 SCC 161, in Shatrughan
Chauhan, the Supreme Court held as under:-
“24.2. ……. in Epuru Sudhakar v. State of A.P. (2006) 8 SCC 161, this
Court held thus:
……..
35. Two important aspects were also highlighted by learned
amicus curiae; one relating to the desirability of indicating reasons
in the order granting pardon/remission while the other was an
equally more important question relating to power to withdraw the
order of granting pardon/remission, if subsequently, materials are
placed to show that certain relevant materials were not
considered or certain materials of extensive value were kept out
of consideration. According to learned amicus curiae, reasons are
to be indicated, in the absence of which the exercise of judicial
review will be affected.
103. ……. For illustration, on receipt of mercy petition, the Department
concerned has to call for all the records/materials connected with the
conviction. Calling for piecemeal records instead of all the materials
connected with the conviction should be deprecated. When the matter is
placed before the President, it is incumbent on the part of the Home
Ministry to place all the materials such as judgment of the trial court,
High Court and the final court viz. Supreme Court as well as any other
relevant material connected with the conviction at once and not call for
the documents in piecemeal.”
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21. The documents stated in Annexure P/2 sent by the
Superintendent, Central Jail, Tihar for consideration of the mercy
petition filed by the petitioner were the documents sent to the Officer
In-Charge (Legal), Prison Headquarters, Tihar. The four documents
viz. (i) Nominal Roll of Mukesh S/o Mange Lal; (ii) Latest Medical
Report; (iii) Trial Court Judgment; and (iv) Details of Punishments in
Annexure P/2 were probably the only documents available with the
Superintendent or called for from the Superintendent, Central Jail,
Tihar. There is no merit in the contention that only the above four
documents were the materials placed before the President of India.
22. In this regard, the Joint Secretary, Ministry of Home Affairs has
filed an affidavit stating that all the relevant documents as laid down
in Paras (23) and (24.2) of Shatrughan Chauhan case were placed
before the President and after detailed examination, the President
has rejected the mercy petition on 17.01.2020. To satisfy ourselves,
we have perused two files containing the communications of the
Ministry of Home Affairs, NCT of Delhi and the office of Lieutenant
Governor and the file containing the note put up before the
President of India. From the covering letter dated 15.01.2020 from
NCT of Delhi addressed to Deputy Secretary (Judicial), Ministry of
Home Affairs, it is seen that all the relevant documents viz., the
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judgment of the trial court, High Court and the Supreme Court and
legible and clean copy of records of the case and the details of the
review/curative petitions filed by the petitioner and other co-accused
along with the present status and other details of the petitioner like
past criminal history, economic condition of the family of the
petitioner and the recommendation of the Government of NCT of
Delhi were all sent by the NCT of Delhi along with mercy petition to
be placed before the President of India. By perusal of the note, we
have seen that all the documents were taken into consideration and
upon consideration of the relevant records and the facts and
circumstances of the surrounding crime, the President has rejected
the mercy petition. There is no merit in the contention that the
relevant materials were kept out of the consideration of the
President.
23. Insofar as the documents like (i) DNA Report exhibited by
PW 45; (ii) Odontology Report; (iii) Complaint under Section 154
Cr.P.C; (iv) Case diary and charge sheet and other documents like
Dying Declaration, etc. are concerned, they are the materials upon
which reliance has been placed upon by the petitioner to put forth
his defence. The defence of the petitioner and the above materials
were considered by the trial court, High Court and the Supreme
Court and the defence to put forth by the petitioner has been
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rejected. It is not necessary that each and every material relied
upon by the petitioner-accused should have been placed before the
President. There is no merit in the contention of the petitioner that
relevant materials were kept out of the consideration of the
President.
24. Absence of recommendation of the Superintendent, Tihar
Jail:- The Superintendent, Central Jail, Tihar has sent the Nominal
Roll. Column No.23 of the Nominal Roll relates to
“recommendations of the Jail Superintendent, if any”. One of the
grounds urged by the petitioner is that forwarding of the mercy
petition without recommendation of the Superintendent of Jail which
is the essential requirement as per the guidelines. According to the
petitioner, the Superintendent of Jail is the right person to make
recommendation as to the conduct of the petitioner in the jail and
about his repentance and that the petitioner has reformed. The
learned counsel for the petitioner contended that Column No. 23
was left blank and thus, the guidelines had not been followed. It was
submitted that recommendation of the Superintendent, Central Jail,
Tihar ought to have been called for as he is the only person who
could have given his opinion that the prisoner’s conduct in prison is
good and whether the petitioner repented and whether it is a fit case
for consideration of mercy petition.
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25. The nominal roll is sent by the Superintendent to give various
details as per the columns contained thereon. Though Column
No.23 relates to recommendations of the Jail Superintendent, it is
not incumbent upon the Jail Superintendent to give his
recommendations as the column contains the word
“recommendations of the Jail Superintendent, if any”. Though
Column No.23 relates to recommendation by the Superintendent,
Tihar Jail, the word “if any” indicates that the Superintendent may or
may not give his remarks/recommendations. That apart, as rightly
contended by the learned Solicitor General, considering the high
position of the President of India and the constitutional duty which
the President is discharging, it may not be appropriate for the
Superintendent to make the recommendation nor was it necessary
for the authorities to call for the opinion of the Jail Superintendent as
to the subsequent conduct of the prisoner while in prison unless the
situation warrants.
26. It is stated that the guidelines “Procedure Regarding Petitions
for Mercy in Death Sentence Cases” issued by the Ministry of Home
Affairs, Government of India have been mentioned and the said
seven point guidelines are called “Guidelines for Dealing with Mercy
Petitions”, read as under:-
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(i) Personality of the convict (such as age, sex or mental
deficiency).
(ii) Has the appellate court express doubt on the reliability of
evidence but has nevertheless decided on conviction?
(iii) Is it alleged that fresh evidence is obtainable, mainly with a
view to seeing whether a fresh inquiry is justified?
(iv) Has the Court, on appeal, enhanced the sentence?
(v) Is there any difference of opinion in the Bench of High Court
judges necessitating reference to a third judge?
(vi) Was the evidence duly considered in fixing responsibility, if it
was a gang murder case?
(vii) Were there long delays in the investigation and the trial?
The grievance of the petitioner is that respondents have rejected the
petitioner’s mercy petition without any application of mind on
account of extraneous considerations which is wholly unsustainable
in law. As held by the Constitution Bench in Maru Ram v. Union of
India and others (1981) 1 SCC 107 and others and referred to Bikas
Chatterjee, the court must keep in view that where the power is
vested in a very high authority, it must be presumed that the said
authority would take into consideration all the aspects of the matter.
We find no reason to hold that the above guidelines were not kept in
view.
27. Learned counsel appearing for the petitioner has inter alia
submitted that the petitioner has been in solitary confinement for
more than one and a half years and it is in gross violation of law laid
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down by the Supreme Court in Sunil Batra v. Delhi Administration
and Others (1978) 4 SCC 494 and Shatrughan Chauhan.
28. Observing that the custodial segregation specified in Section
30(2) of the Prisons Act is attracted, only after the mercy petition is
rejected by the President or the Governor and only then the person
is “under sentence of death” attracting custodial segregation
specified in Section 30(2) of the Prisons Act, in Shatrughan
Chauhan, it was held as under:-
“90. It was, therefore, held in Sunil Batra v. Delhi Administration (1978) 4
SCC 494 that the solitary confinement, even if mollified and modified
marginally, is not sanctioned by Section 30 of the Prisons Act for
prisoners “under sentence of death”. The crucial holding under Section
30(2) is that a person is not “under sentence of death”, even if the
Sessions Court has sentenced him to death subject to confirmation by
the High Court. He is not “under sentence of death” even if the High
Court imposes, by confirmation or fresh appellate infliction, death
penalty, so long as an appeal to the Supreme Court is likely to be or has
been moved or is pending. Even if this Court has awarded capital
sentence, it was held that Section 30 does not cover him so long as his
petition for mercy to the Governor and/or to the President permitted by
the Constitution, has not been disposed of. Of course, once rejected by
the Governor and the President, and on further application, there is no
stay of execution by the authorities, the person is under sentence of
death. During that interregnum, he attracts the custodial segregation
specified in Section 30(2), subject to the ameliorative meaning assigned
to the provision. To be “under sentence of death” means “to be under a
finally executable death sentence”.
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29. Though it is alleged that the petitioner has been in solitary
confinement for 08 months and 09 days in violation of the principles
of the Sunil Batra, the same is refuted by the respondents. In his
affidavit, Director General, Prisons has denied the averment that the
petitioner was kept in solitary confinement. It is stated that for
security reasons, the petitioner was kept in one ward having
multiple single rooms and barracks and the said single room had
iron bars open to air and the same cannot be equated with solitary
confinement/single cell. It is stated that the prisoner/petitioner who
was kept in the single room comes out and mixes up with the other
inmates in the prison on daily basis like other prisoners as per rules.
Considering the averments in the affidavit filed by the Director
General, Prisons, the contention of the petitioner that he has been
kept in solitary confinement in violation of the principles of Sunil
Batra v. Delhi Administration and Others (1978) 4 SCC 494 cannot
be countenanced. This cannot therefore be a ground for review of
the order rejecting the petitioner’s mercy petition.
30. Alleged sufferings in the prison:- Taking us through the
mercy petition, learned Senior counsel for the petitioner submitted
that in the mercy petition, the petitioner has narrated about the
alleged sufferings and that he was beaten up in the prison and
sexually harassed and was suffering everyday in the prison. The
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petitioner has further averred that his brother Ram Singh was
actually murdered though his death was projected as “suicide” and
that due to death of his brother, the petitioner was living in
“perpetual fear”. The learned Senior counsel contended that the
averments made by the petitioner as to his sufferings in the prison
had not been taken into consideration while rejecting his mercy
petition.
31. As per the settled legal position held in Narayan Dutt and
others v. State of Punjab and another (2011) 4 SCC 353, Epuru
Sudhakar and Another v. Govt. of A.P. and Others (2006) 8 SCC
161 and Shatrughan Chauhan, the exercise of power under Article
72/161 of the Constitution is subject to challenge only on the
grounds indicated thereon. The alleged sufferings in the prison
cannot be a ground for judicial review of the executive order passed
under Article 72 of the Constitution rejecting the petitioner’s mercy
petition.
32. Consideration and quick rejection of petitioner’s Mercy
Petition- Not a ground for review:- On behalf of the petitioner, it
was contended that there was non-application of mind and the
entire matter proceeded with bias and pre-determined mind. The
learned Senior counsel for the petitioner submitted that after
dismissal of the curative petition on 14.01.2020, the petitioner
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submitted the mercy petition which was forwarded by the
Superintendent on the very same day and in less than 24 hours of
having received the petitioner’s mercy petition, the Deputy Chief
Minister, Govt. of NCT of Delhi announced that the government had
made the recommendation for rejection of the petitioner’s mercy
petition. The learned Senior counsel for the petitioner contended
that the petitioner’s mercy petition was sent to the Lieutenant
Governor at “lightening speed” and on 16.01.2020, the Delhi Govt.
recommended the rejection of petitioner’s mercy petition in less than
24 hours and forwarded it to the President of India and the same
was rejected by the President on 17.01.2020. It was therefore
submitted that there was non-application of mind in rejection of the
petitioner’s mercy petition as the same has been rejected with
“lightening speed” and with pre-determined mind.
33. The petitioner filed the curative petition before the Supreme
Court on 08.01.2020 and the same was dismissed by the Supreme
Court on 14.01.2020. The petitioner filed mercy petition addressed
to the President of India under Article 72 of the Constitution of India
and also to the Lieutenant Governor under Article 161 of the
Constitution of India on 14.01.2020. The Lieutenant Governor
forwarded the same to the Ministry of Home Affairs on 15.01.2020
with the relevant records. The Ministry of Home Affairs forwarded
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the same to the President of India on 16.01.2020 with the relevant
records. After consideration of the matter, the President of India
rejected the petitioner’s mercy petition on 17.01.2020 and the
petitioner was informed about the rejection.
34. As held by the Constitution Bench in Maru Ram and referred
to Bikas Chatterjee, the court shall keep in mind that where the
power is vested in a very high authority, it must be presumed that
the said authority would act carefully after an objective
consideration of all the aspects of the matter. As pointed out earlier,
the note put up before the President of India is a detailed one and
that all the relevant materials were placed before the President of
India and upon consideration of the same, the mercy petition was
rejected. Merely because there was quick consideration and
rejection of the petitioner’s mercy petition, it cannot be assumed
that the matter was proceeded with pre-determined mind.
35. As rightly contended by the learned Solicitor General, delay in
disposal of mercy petition may be a ground calling for judicial review
of the order passed under Article 72/161 of the Constitution. But the
quick consideration of the mercy petition and swift rejection of the
same cannot be a ground for judicial review of the order passed
under Article 72/161 of the Constitution. Nor does it suggest that
there was pre-determined mind and non-application of mind.
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36. In the result, we do not find any ground for exercise of judicial
review of the order of the President of India rejecting the petitioner’s
mercy petition and this petition is liable to be dismissed. The writ
petition is dismissed accordingly.
………………………..J.
[R. BANUMATHI]
..………………………..J.
[ASHOK BHUSHAN]
………………………..J.
[A.S. BOPANNA]
New Delhi;
January 29, 2020.
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