Rejection of Mercy Petition of the convict in Nirbhaya’s Case is upheld by the Supreme Court

Mukesh Kumar v Union Of India and ors., Writ Petition (Criminal) D No. 3334 of 2020 – January 29, 2020.

The bench comprising of the Justice. R. Banumathi, Justice. Ashok Bhushan and the Justice. A.S. Bopanna had dismissed the writ petition.

The petitioner who is a death row convict in Nirbhaya’s case filed the writ petition, challenging the rejection of his mercy petition by the president of India and seeking the commutation of his death sentence.

The issues were framed based on the grounds of challenge put forth by the petitioner for the judicial review of the order passed by the president. Whether relevant materials are sent to the president for consideration or the mercy petition is rejected by not taking the relevant materials for consideration? Whether the absence of recommendation of the jail superintendent can be taken as the ground for judicial review? Whether the averments regarding solitary confinement on the petitioner is true or not? Whether the alleged sufferings of the petitioner in the prison can be taken as a ground for judicial review? Whether the quick consideration and swift rejection of the mercy petition can be assumed as pre-determined mind and non-application of mind?

The contention on the side of the petitioner is that on referring the case, Shatrugan Chauhan and another v Union of India and others., it was submitted that while forwarding the mercy petition, the relevant documents like case records, judgment of the trial court, high court and supreme court, and the reports from the superintendent, Tihar jail had not been placed before the president of India. Also on referring the case, Sunil Batra v Delhi Administration and others, solitary confinement of petitioner has not been taken into consideration. It was argued that the mercy petition was rejected without taking the relevant materials for consideration

The contention on the side of respondent is that the guidelines laid down in the above mentioned cases are compiled with. While considering the solitary confinement, the affidavit filed by the Director General, Prisons shows that the petitioner was only kept in a single room with iron bars open to air and was intermingling with other prisoners. The averments in the point of quick rejection of mercy petition is that delay in the disposal of mercy petition may be ground for consideration of mercy petition. But if quick consideration and rejection of mercy petition cannot be a ground for judicial review of the order of the president under Article 72.

The court held that,

While taking the first challenge, the Joint Secretary and the Ministry of Home Affairs has filed an affidavit containing the relevant documents as per the guidelines mentioned in Shatrughan Chauhan case. It is clear that all the materials are taken for consideration by the President for rejecting the mercy petition.

So there is no merit in the contention of the petitioner stating that materials were kept out of consideration by the President.

While coming to the second challenge, Column No. 23 of the nominal roll relates to “recommendations of the Jail superintendent, if any” one of the guidelines to be followed for defining the persons’ conduct in prison while forwarding the mercy petition. But The words “if any” indicates that the superintendent may or may not give his remarks/ recommendations unless the situation warrants.

So the absence of recommendation of superintendent cannot be taken for judicial review.

   Coming to the third challenge, the affidavit filed by the Director General, prisons stated that for security reasons, the petitioner was kept in single room that had iron bars open to air and was intermingling with other prisoners on daily basis, so it can’t be equated to solitary confinement in violation of the principles in Sunil Batra case.

Therefore it cannot be a ground for judicial review.

   By referring the fourth challenge to the case, Narayan Dutt and others v State of Punjab and others, the exercise of power of judicial review of the decision taken by the president of India on the mercy petition is very limited. So the alleged sufferings in the prison cannot be the ground for judicial review of the executive order passed under Article 72 of the constitution. While deciding the final challenge put forth by the petitioner, the bench referred Maru Ramcase, that if 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.

Here the relevant materials were placed before the president, and upon consideration the mercy petition was rejected. Therefore the quick consideration and swift rejection of the cannot be the ground for judicial review and also it does not suggest that there was pre-determined mind and non-application of mind.

Accordingly the bench dismissed the writ petition.

View/ Download the Judgment: Mukesh Kumar v Union Of India and ors

– Prithisha S

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