Vinay Sharma vs Union Of India on 14 February, 2020


Supreme Court of India

Vinay Sharma vs Union Of India on 14 February, 2020

Author: 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

22
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

23
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

24
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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