Nirbhaya case: SC rejects convict Mukesh's plea challenging rejection of mercy petition

The Supreme Court Wednesday dismissed the petition of death row convict Mukesh Kumar Singh in the Nirbhaya case challenging the rejection of his mercy plea by the President, and said that its "quick consideration" and "swift rejection" does not suggest non-application of mind or it being pre-determined.

The apex court held that all the documents, including the verdicts delivered in the case by the courts, past criminal history of convict, economic condition of his family, were taken into consideration by the President while rejecting the mercy plea.

A three-judge bench, headed by Justice R Banumathi, said that alleged sufferings in jail cannot be a ground to seek judicial review of executive order passed under Article 72 of the Constitution, which deals with power of President to grant pardons and to suspend, remit or commute sentences in certain cases.

"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 (Mukesh) mercy petition and this petition is liable to be dismissed," said the bench, also comprising Justices Ashok Bhushan and A S Bopanna.

It observed that documents including DNA and odontology reports, dying declaration, case diary and charge sheet of the case were already considered by the trial court, high court as well as the apex court and the defence put forth by Mukesh was already 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," the bench said in its 25-page order.

The bench did not accept the contentions of the convict's counsel that Mukesh was allegedly kept in solitary confinement for over eight months.

The apex court referred to an affidavit filed by Director General (Prisons) which said that he was kept in a separate room having iron bars open to air for security reasons and the same can not be equated with solitary confinement.

"This cannot therefore be a ground for review of the order rejecting the petitioner's mercy petition," the bench said.

Dealing with arguments of the convict's counsel that the mercy plea was rejected with "lightening speed", the bench said: "As held by the constitution bench..., 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.

"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".

The apex court agreed with the contentions of Solicitor General Tushar Mehta that delay in disposal of mercy petition might be a ground for seeking judicial review of the order passed under Article 72 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," the bench noted.

It said that exercise of the power under Articles 72 and 161 (power of the Governor to grant pardons and to suspend, remit or commute sentences in certain cases) is a matter of "discretion" and the apex court has taken the consistent view that executive orders under these Articles "should be subject to limited judicial review."