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Supreme Court of India
Vinay Sharma vs Union Of India on 14 February, 2020Author: R. Banumathi
Bench: R. Banumathi, Ashok Bhushan, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (CRL.) NO.65 OF 2020
VINAY SHARMA …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-Vinay Sharma – 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
grounds:- (i) Non-furnishing of relevant materials under RTI Act;
(ii) non-consideration of relevant material; (iii) torture; (iv) mental
illness; (v) consideration of irrelevant material by the respondent
authorities; and (vi) illegal solitary confinement.
Signature Not Verified
Digitally signed by
2. The petitioner is a death-row convict in Nirbhaya’s case which
MADHU BALA
Date: 2020.02.14
14:21:07 IST
Reason:
relates to the gang rape of the victim in the moving bus in Delhi on
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the night of 16/17.12.2012. The trial court by its judgment dated
10.09.2013 convicted the petitioner and other co-accused in
SC No.114 of 2013 under Sections 120-B, 365, 366 read with
Section 120-B IPC, 307 read with Section 120-B IPC, 376(2)(g),
377 read with Section 120-B IPC, 302 read with Section 120-B IPC,
395, 397 read with Section 120-B IPC, 201 read with Section 120-B
IPC and 412 IPC. The trial court imposed the death sentence on
the petitioner and other co-accused by the order dated 13.09.2013.
The High Court by its judgment dated 13.03.2014 confirmed the
conviction of the petitioner and co-accused and also the death
sentence imposed upon them. For awarding death sentence, the
trial court and the High Court have recorded detailed reasonings
that the incident was gruesome and falling within the category of
“rarest of rare cases”. The Supreme Court by its judgment dated
05.05.2017 in Mukesh and Another v. State (NCT of Delhi) and
Others (2017) 6 SCC 1 confirmed the conviction and also the death
sentence and dismissed the appeal preferred by the petitioner and
other co-accused. After referring to various judgments and by
elaborate reasonings, the Supreme Court held that there were no
extenuating or mitigating circumstances. The review petition was
heard at length by the Supreme Court in the open court and the
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same was considered and dismissed by the order dated
09.07.2018.
3. On 07.01.2020, learned Sessions Court, Patiala House issued
an execution warrant to execute the petitioner on 22.01.2020. On
08.01.2020, petitioner filed a curative petition before the Supreme
Court and the same was dismissed on 14.01.2020. After rejection of
co-accused Mukesh’s mercy petition, Sessions Court issued a fresh
warrant for execution directing that the petitioner and the co-
accused to be executed on 01.02.2020. On 10.01.2020, petitioner’s
counsel sought for the documents from the Superintendent and
after obtaining the documents, the petitioner preferred the mercy
petition to the President of India on 29.01.2020. The President of
India rejected the mercy petition on 01.02.2020 and the same was
communicated to the petitioner in Tihar Central Jail on 01.02.2020.
4. On 31.01.2020, learned Sessions Judge passed an order
postponing the execution of the death warrant. The criminal revision
petition filed by the Union of India has been disposed of by the High
Court by its order dated 05.02.2020. Challenge in this writ petition
is the rejection of mercy petition by the President of India under
Article 72 of the Constitution on 01.02.2020.
Contentions:-
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5. Dr. A.P. Singh, learned counsel appearing on behalf of
petitioner Vinay Sharma challenged the rejection of his mercy
petition by the President of India contending that the Lieutenant
Governor and Home Minister, NCT of Delhi have not signed the
recommendation for rejection of the petitioner’s mercy plea. It was
submitted that the relevant materials like the case records, correct
medical status report of the petitioner, Social Investigation Report
and the nominal roll of the petitioner were not placed before the
President of India and the concerned authorities and these
documents were kept out of consideration and only irrelevant
materials were placed before the President of India which according
to the learned counsel, vitiates the order of rejection of mercy
petition. As per Dr. A.P. Singh, he approached the respondents
authorities that is office of the President of India, Lieutenant
Governor, Ministry of Home Affairs and the Department of Home,
Govt. of NCT of Delhi under the Right to Information Act, 2005 and
filed RTI application requesting for records pertaining to the
rejection of the mercy petition of the petitioner; however, the same
have not been furnished to nor was there any reply to his
application. However, the learned counsel submitted that he was
permitted to peruse the relevant file. According to the learned
counsel, without access to the records, the petitioner cannot
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exercise his right under Article 21 of the Constitution and he cannot
challenge the order rejecting his mercy petition.
6. It is the further argument of the learned counsel for the
petitioner that petitioner Vinay Sharma was only 19 years old and is
not a habitual offender and hails from lower class of society and
these aspects could have been considered only by a thorough
Social Investigation Report which was not placed before the
President of India.
7. The learned counsel submitted that the petitioner was kept in
solitary confinement even while his mercy petition was still pending
before the President of India and such illegal confinement was
unfair and in violation of Sunil Batra v. Delhi Administration and
Others (1978) 4 SCC 494 and this becomes a ground for
commutation of death sentence. It was further urged that the
petitioner was tortured in the jail not only physically and there were
also mental tortures and on number of days, petitioner Vinay
Sharma was sent to medical treatment and also for psychological
treatment. It is the claim of the learned counsel that the petitioner
has been on psychological medication and diagnosed with the
adjustment disorder and that as per Delhi Prisons Rules, the
petitioner should have been provided with proper care and
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treatment for mental illness and on the basis of the medical records.
It is the claim of the learned counsel that the prisoners with medical
illness and mental illness cannot be executed in terms of the UN
General Assembly Resolutions as referred to in Shatrughan
Chauhan and Another v. Union of India and Others (2014) 3 SCC 1
and other Union Treaties.
8. Countering the above arguments, Mr. Tushar Mehta, the
learned Solicitor General has submitted that all the relevant
materials were placed before the concerned authorities and the
mercy petition was forwarded to the President of India along with all
those documents including the details of the court cases, records of
the case, medical record, Social Investigation Report. It was
submitted that the mercy petition along with the relevant documents
was received by the Ministry of Home Affairs who have perused and
with the appropriate note file, thereafter documents were placed
before the President of India with a detailed Note File. Insofar as
the alleged medical illness/mental illness of the petitioner, learned
Solicitor General submitted that the petitioner was regularly checked
and the Medical Officer In-Charge, Central Jail Hospital has issued
the medical report stating that the petitioner was psychologically
well adjusted and his general condition is stable and the medical
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report of the petitioner has been placed before the President of
India. Drawing our attention to the affidavit filed by the Director
General (Prisons), Tihar Jail, it was submitted that the petitioner was
never placed in solitary confinement and was placed in a single
room with iron bars and the petitioner intermittently mingled with
other prisoners. The learned Solicitor General submitted that the
scope of judicial review of the order passed by the President of
India is very limited and the contentions urged on behalf of the
petitioner would not fall within the grounds of review as laid down by
various judgments of this Court and prayed for dismissal of the writ
petition.
9. 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 various grounds that the
settled principles of consideration of mercy petition have not been
followed and that the relevant materials were not placed before the
President of India.
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
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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
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. The grounds for judicial review of rejection of mercy petition
under Article 72 of the Constitution has been considered in
Satpal v. State of Haryana (2000) 5 SCC 170 and the Constitution
Bench judgment in Bikas Chatterjee v. Union of India and Others
(2004) 7 SCC 634 and Shatrughan Chauhan. After referring to
various decisions, the Supreme Court considered the power of the
President of India or the Governor of the State under Articles 72 and
161 of the Constitution and observing that the power vested in the
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President of India under Article 72 and the Governor under Article
161 of the Constitution is a constitutional duty, in Shatrughan
Chauhan, it was 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
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. In a number of decisions, 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
WP(Crl.) D No.3334 of 2020 – similar petition filed by co-accused
Mukesh Kumar, we have referred to number of judgments which
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have elaborately considered the scope of judicial review of the
decision of the President of India on a petition under Article 72 of
the Constitution of India. It is not necessary to refer to all those
decisions referred to in WP(Crl.) D No.3334 of 2020. Suffice to refer
to the Epuru Sudhakar and Another v. Govt. of A.P. and Others
(2006) 8 SCC 161 and Shatrughan Chauhan. In Epuru Sudhakar,
the Court has referred to the various grounds available for limited
judicial review under Article 72 of the Constitution, 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
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.”
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13. In Shatrughan Chauhan, 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 8 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.”
14. 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 his mercy petition:-
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(i) non-furnishing of copy of records pertaining to the
rejection of the mercy petition of the petitioner under
Right to Information Act, 2005;
(ii) relevant materials were kept out of consideration;
(iii) torture while in custody and consequential illness and
mental illness of the petitioner and non-placing of
materials pertaining to health condition of the petitioner;
(iv) illegal solitary confinement; and
(v) Bias order was passed with prejudiced mind.
15. Re. Contention: Records not made available to the
petitioner under RTI Act : Learned counsel for the petitioner while
seeking to put forth the contention would submit that he had made
an application to the office of the President of India, Lieutenant
Governor, Ministry of Home Affairs and the Department of Home,
Govt. of NCT of Delhi under the Right to Information Act, 2005
seeking copies of certain documents from the file which were
relevant in the context of consideration of the mercy petition.
However, the same has not been replied to. In that regard, the
learned counsel contended that he was permitted to peruse the
records and since the copies were not made available, he be
permitted to peruse the original file and make his submissions in the
court. Insofar as the grievance raised by the learned counsel for the
petitioner that he had not been furnished copies under the Right to
Information Act, we do not find it appropriate to advert to that aspect
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of the matter since it is beyond the scope of consideration in a
petition of the present nature.
16. In the writ petition filed under Article 32 of the Constitution of
India seeking judicial review of the order of the President passed
under Article 72 of the Constitution, the scope is very limited and the
Court is called upon to examine:- (i) where the order has been
passed without application of mind; (ii) where the order has been
passed on extraneous or wholly irrelevant considerations; (iii) that
relevant materials have been kept out of consideration; and (iv) the
order suffers from arbitrariness.
17. Insofar as the contention by the learned counsel that the file
be made available to him, we are of the opinion that even such a
course would not be appropriate. During the course of hearing, we
have rejected the request of the learned counsel appearing for the
petitioner that he should be permitted to peruse the file and then
make the submission on behalf of the petitioner. In any event, we
have heard learned counsel for the petitioner exhaustively and the
contentions with regard to the alleged discrepancies which is said to
have been observed by the learned counsel in the manner in which
the file had been processed and has been taken up for
consideration. Having taken note of such contention, this Court
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thought it fit to look into the file to satisfy itself as to whether the
procedure as contemplated has been followed. Accordingly, we
have adopted that course. In that regard, from the file the learned
Solicitor General has referred to the various documents/enclosures
forwarded along with the mercy petition, nature of consideration
made from the stage of receipt of the mercy petition and an
appropriate note put at various stages was referred and the file
relating to the same was made available to the Court. The
consideration made by us is based on the contents of the file. In any
event, as already indicated above, the issue with regard to the
nature of documents required not being provided under the Right to
Information Act would not arise, keeping in view the definite
parameters under which the petition of the present nature is
required to be considered. Further, since this Court has examined
the file as indicated above, the petitioner cannot make grievance
that because of the non-furnishing of the copy of the documents,
prejudice is caused to them.
18. Re. Contention that the Lieutenant Governor, Delhi and
Home Minister, Govt. of NCT of Delhi did not sign the relevant
file:- Learned counsel for the petitioner submitted that he was
permitted to inspect the file and on such inspection, he has noticed
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that the Lieutenant Governor and Minister (Home), NCT of Delhi did
not peruse the file and on the other hand, upon the message sent
by an official, they have recommended the rejection of the mercy
petition. It was further submitted that on inspection of file, the
learned counsel learnt that the relevant file has not been signed by
the Minister (Home), NCT of Delhi and the Lieutenant Governor,
Delhi. Upon perusal of the file relating to the mercy petition of the
petitioner, it is seen that the Minister (Home), NCT of Delhi and
Lieutenant Governor, Delhi has perused the relevant file and have
signed the note to reject the mercy petition. We do not find any
merit in the contention that there was non-application of mind on the
part of the Minister (Home), NCT of Delhi and Lieutenant Governor,
Delhi.
19. Re. Contention – Non-placing of relevant materials before
the President of India and the relevant materials were kept out
of 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
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case and other judgments were not placed before the President of
India.
20. To satisfy ourselves, we have asked the learned Solicitor
General to produce the files containing the file relating to Govt. of
NCT of Delhi and the office of Lieutenant Governor, Delhi and the
file relating to forwarding of the mercy petition of the petitioner from
Govt. of NCT of Delhi to Ministry of Home Affairs and file containing
the note put up before the President of India. Accordingly, three
files pertaining to the petitioner have been produced before us
which we have perused. Petitioner Vinay Sharma had earlier filed a
mercy petition which was received by the President Secretariat on
04.10.2019. That mercy petition was forwarded by Govt. of NCT of
Delhi along with enclosures as stated in the covering letter dated
02.12.2019. The learned Solicitor General submitted that the said
mercy petition was specifically withdrawn and the petitioner had
filed another mercy petition on 29.01.2020. The said mercy petition
was forwarded from the Govt. of NCT of Delhi to Ministry of Home
Affairs on 30.01.2020 along with the enclosures stated in the
covering letter dated 30.01.2020. It is seen from the covering letter
that various documents were placed before the President of India
viz. (i) Recommendation of the Govt. of NCT of Delhi
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in regard to grant of clemency to the petitioner; (ii) Legible and clean
copy each of the judgment of Trial Court, High Court and the
Supreme Court of India; (iii) Legible and clean copy of records of
the case including Police Report; (iv) Nominal roll of the prisoners;
(v) Latest medical report of the prisoner; (vi) Details of the
review/curative petitions pending in the Court filed by the accused
and other co-accused of the case, if any, along with present status;
(vii) The past criminal history of the prisoner, if any; (viii) Economical
condition of the family of the prisoner; and (ix) Any other documents
related to the case (Order for execution on 01.02.2020).
21. Before placing the note file before the President of India, the
Ministry of Home Affairs had placed the matter before the Hon’ble
Union Minister, Ministry of Home Affairs who applied his mind and
by a speaking order, recommended for rejection of the mercy
petition. By perusing the note put up before the President of India,
we have seen that all the documents enclosed along with mercy
petition of the petitioner and the submissions made by him in the
mercy petition were taken into consideration. Upon perusal of the
Note and the records, the President of India rejected the mercy
petition of the petitioner. Taking note of the documents forwarded
along with the mercy petition and the note put up by the Ministry of
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Home Affairs before the President of India, the mercy petition was
rejected. We find no merit in the contention that the relevant
materials were kept out of consideration of the President of India.
22. Non-placing of relevant materials – medical status report
and the status report as per the mental health of the petitioner:-
The learned counsel for the petitioner had taken us through the
averments in the petition and submitted that torture, cruelty and
inhuman treatment of the petitioner and the physical assault inflicted
on him in the prison, the petitioner was suffering from various illness
and on complaints of “decreased appetite”, “decreased sleep” and
number of other times for “psychiatric review”, “thought disorder”
and “weakness”, number of times, he was taken to Central Jail
Hospital and the petitioner was given treatment repeatedly for those
complaints. It was contended that due to inhuman torture and
degrading treatment suffered by the petitioner during his
incarceration, the petitioner developed mental illness and caused
self-harm to himself on several occasions. It was submitted that the
medical record, mental illness and the status report on the mental
health of the petitioner were not placed before the President of
India. It was contended that in the mercy petition, the petitioner has
narrated that the petitioner did not receive adequate health care
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which would have caused his mental illness and such mental illness
and procedural lapses infringe the rights of the petitioner and
entitling him for commutation. It was submitted that the medical
status report, Social Investigation Report and various other relevant
documents were not placed before the President of India and thus,
the relevant materials were kept out of consideration of the
President of India.
23. Considering the question as to the relevant documents to be
placed before the President of India and after referring to Epuru
Sudhakar, 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
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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.”
24. By perusal of the file produced before us, it is seen that the
medical report of the petitioner along with the treatment and his
latest medical report dated 30.01.2020 was placed before the
concerned authorities which in turn, was placed before the
President. As seen from the enclosures in the forwarding letter of
the mercy petition dated 30.01.2020, latest medical status report
dated 30.01.2020 issued by Dr. Akash Narade, Senior Medical
Officer and other medical reports and the treatment given to the
petitioner, have been placed before the competent authority which
in turn, were forwarded to the President of India. In the medical
status report, Dr. Akash Narade has referred to the details of the
treatment of the petitioner and certified that the petitioner is
psychologically well adjusted and he was being provided with
regular therapy sessions by specialized therapists and the general
condition of the petitioner is stable. There is no merit in the
contention that the medical report of the petitioner has not been
placed before the President.
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25. The alleged suffering of the petitioner in the prison cannot be
a ground for judicial review of the executive order passed under
Article 72 of the Constitution of India rejecting petitioner’s mercy
petition. As per the settled legal position in Narayan Dutt and Others
vs. State of Punjab and Another (2011) 4 SCC 353 and Epuru
Sudhakar, exercise of power under Articles 72 and 161 of the
Constitution of India is subject to challenge only on the grounds
indicated thereon. When the highest constitutional authority, upon
perusal of the Note and the various documents placed along with
mercy petition, has taken a decision to reject the mercy petition, it
cannot be contended that the highest constitutional authority had
not applied its mind to the documents.
26. Learned counsel for the petitioner then urged that the
petitioner comes from poor economic and social background and
the Social Investigation Report of the mercy petition has not been
forwarded along with the mercy petition. This contention again has
no force. As seen from the list of enclosures sent along with the
mercy petition, it is seen that the economic condition of the family of
the petitioner and his Family Economic Status have been enclosed
as enclosure “H”. It is to be pointed out that the petitioner had earlier
filed a mercy petition in October, 2019 and said mercy petition was
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forwarded along with enclosures from the NCT of Delhi to Ministry
of Home Affairs on 02.12.2019. While forwarding the said mercy
petition, Social Investigation Report containing the economic
conditions of the family of the petitioner was enclosed as
enclosures. While forwarding the mercy petition dated 30.01.2020,
the said Social Investigation Report dated 30.11.2019 containing
family background of the petitioner and economic status of the
family and other details were again forwarded. There is no merit in
the contention that the Social Investigation Report was not placed
before the President for consideration and the relevant materials
were kept out of consideration of the President.
Solitary Confinement:-
27. Learned counsel appearing for the petitioner argued that the
petitioner was illegally segregated and put in solitary confinement
prior to rejection of his mercy petition in violation of law laid down in
Sunil Batra. In the said case, it was held by the Supreme Court that
“a person is under sentence of death” only after the mercy petition is
rejected by the Governor and the President of India and on further
application, there is no stay of execution by the authorities. It is
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therefore contended that solitary confinement prior to rejection of
mercy petition by the President of India is unconstitutional.
28. According to the petitioner, he has been kept in solitary
confinement for a period of one year. This contention is however
refuted by the respondents. In the affidavit dated 13.02.2020 filed
by the Director General (Prisons), Tihar Jail, it is stated that for
security reasons, the petitioner was placed in one ward having
multiple single rooms and barracks. It is further stated that during
that limited period, the petitioner was kept in one of the single rooms
and during such duration, whenever all prisoners came out, the
petitioner-convict was also coming out. It is stated that the single
room where the petitioner was placed had iron bars open to air and
the same cannot be equated with solitary confinement as the
petitioner was permitted to come out and mingle with other inmates
at regular intervals on daily basis like other prisoners. Further, it has
been submitted that such placement of the petitioner in a single
room was for limited duration and intermittent period either for
security reasons or other reasons in the interest of convict. It is
clear from the affidavit filed by the Director General (Prisons) that
the petitioner was not kept in solitary confinement; rather he was
kept in protective custody which was for the benefit of the petitioner
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and also for ensuring the security. 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, does not merit acceptance
and this cannot be a ground for review of the order rejecting the
mercy petition of the petitioner.
29. Bias Order was passed on irrelevant considerations:-.
Another ground argued by the learned counsel for the petitioner is
the alleged bias caused to the case of the petitioner because of the
statements made by the Ministers in the Delhi Government as well
as in the Union Government which have led to pre-judging the
outcome of the petitioner’s mercy petition even before it was placed
before the President of India for consideration. The petitioner has
referred to the various statements made by the Ministers to the
effect that the death sentence be awarded to the convicts to
contend that such public statements had the effect of influence “aid
and advice” tendered by the Council of Ministers of Delhi to the
Lieutenant Governor or by Council of Ministers in the Central
Government to the President and the order of rejection is vitiated by
bias. As discussed earlier, note put up before the President is a
detailed one and all the relevant materials were placed before the
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President and upon consideration of the same, the mercy petition
was rejected. The public statements said to have been made by the
Ministers, cannot be said to have any bearing on the “aid and
advice” tendered by the Council of Ministers of Delhi to the
Lieutenant Governor or by Council of Ministers in the Central
Government to the President.
30. The petitioner filed curative petition before the Supreme Court
and the same was dismissed on 14.01.2020. The petitioner filed
mercy petition on 29.01.2020 and the same was forwarded by NCT
of Delhi to the Ministry of Home Affairs on 30.01.2020. The
President of India rejected the mercy petition on 01.02.2020 and the
same was communicated to the petitioner in Tihar Central Jail on
01.02.2020. As pointed out earlier, the case records, judgments of
the trial court, High Court and the Supreme Court, clean copy of
records of the case, Nominal Roll of the petitioner, medical report of
the petitioner, Social Investigation Report and other relevant
documents were forwarded to the Ministry of Home Affairs. The note
put up before the President of India is a detailed one and all the
relevant materials were placed before the President and upon
consideration of same, the mercy petition was rejected.
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31. As held by the Constitution Bench in Maru Ram v. Union of
India and Others (1981) 1 SCC 107 and referred to Bikas
Chatterjee (2004) 7 SCC 634, 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.
32. 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 writ petition is liable to be dismissed. The
writ petition is dismissed accordingly.
….……………………..J.
[R. BANUMATHI]
.………………………..J.
[ASHOK BHUSHAN]
….……………………..J.
[A.S. BOPANNA]
New Delhi;
February 14, 2020.
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