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Judicial review filed before the supreme court for rejection of mercy petition by accused in Nirbaya

VINAY SHARMA Vs UNION OF INDIA AND OTHERS WRIT PETITION (CRL.) NO.65 OF 2020

The judgment was pronounced by justice R. BANUMATHI, ASHOK BHUSHAN and A.S. BOPANNA on February 14, 2020.

Facts

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.

Contention

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. It was also contented 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. 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

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. 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 report of the petitioner has been placed before the President of India.

The Court observed that, 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. 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 characterized as delay.

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. 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. 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. We find no merit in the contention that the relevant materials were kept out of consideration of the President of India. There is no merit in the contention that the medical report of the petitioner has not been placed before the President. 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.

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.

– Aarthy K

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