VINAY SHARMA versus UNION OF INDIA AND OTHERS

[2020] 10 S.C.R. 393

VINAY SHARMA

UNION OF INDIA AND OTHERS

(Writ Petition (Crl.) No. 65 of 2020)

FEBRUARY 14, 2020

[R. BANUMATHI, ASHOK BHUSHAN AND

A. S. BOPANNA, JJ.]

Constitution of India: Art.72 – Writ petition challenging therejection of mercy petition by the President of India and seekingcommutation of death sentence inter alia on the grounds of nonfurnishing of relevant materials under the RTI Act, non-consideration of relevant material, torture, mental illness, illegalsolitary confinement – Held: In the writ petition filed u/Art.32 seekingjudicial review of the order of the President passed u/Art.72, thescope is very limited and the Court is called upon to examine:- wherethe order has been passed without application of mind; where theorder has been passed on extraneous or wholly irrelevantconsiderations; that relevant materials are kept out considerationand the order suffers from arbitrariness – In the instant case, thecase records, judgments of trial court, High Court and SupremeCourt, clean copy of records of the case, Nominal Roll of thepetitioner, medical report of the petitioner, Social InvestigationReport and other relevant documents were forwarded to the Ministryof Home Affairs – Recommendation by the Lieutenant Governorand Home Minister for rejection of mercy petition was made afterperusing the file and therefore plea of non-application of mind ontheir part is not tenable – All the documents along with the mercypetition were taken into consideration – Medical report of thepetitioner along with the treatment and his latest report was placedbefore the President – Alleged suffering of the petitioner in the prisoncannot be ground for judicial review of the executive order passedu/Art.72 – When the highest constitutional authority, upon perusalof the Note and the various documents placed along with the mercypetition, took decision to reject the mercy petition, it cannot becontended that the highest constitutional authority had not appliedits mind to the documents – While forwarding the mercy petition, theSocial Investigation Report of the petitioner containing the economic

Aconditions of the family was also enclosed – It is also clear from theaffidavit of Prison Authority, that the petitioner was not kept insolitary confinement, rather he was kept in protective custody whichwas for his own benefit and also for ensuring the security – TheNote put up before the President is detailed one and all the relevantmaterials were placed before the President and upon considerationBof same, the mercy petition was rejected – No ground for exerciseof judicial review of the order rejecting the petitioner’s mercy petitionwas made out – Writ petition dismissed – Administrative law – Judicialreview.

Maru Ram v. Union of India and Others (1981) 1 SCCC107 – Followed.

Sunil Batra v. Delhi Administration and Others (1978)4 SCC 494 : [1979] 1 SCR 392; Shatrughan Chauhanand Another v. Union of India and Others (2014) 3SCC 1 : [2014] 1 SCR 609; Devender Pal Singh BhullarDv. State of (NCT of Delhi) (2013) 6 SCC 195 : [2013] 6SCR 676; Satpal v. State of Haryana (2000) 5 SCC170 : [2000] 3 SCR 858; Bikas Chatterjee v. Union ofIndia and Others (2004) 7 SCC 634; Epuru Sudhakarand Another v. Govt. of A.P. and Others (2006) 8 SCCE161 : [2006] 7 Suppl. SCR 81; Narayan Dutt andOthers v. State of Punjab and Another (2011) 4 SCC353 : [2011] 4 SCR 983 – relied on

Mukesh and Another v. State (NCT of Delhi) and Others(2017) 6 SCC 1 – referred to

Case Law Reference

CRIMINAL ORIGINAL JURISDICTION: Writ Petition(Criminal) No. 65 of 2020.

Under Article 32 of the Constitution of India

Dr. A.P. Singh, V.P. Singh, Ms. Geeta Chauhan, Ms. Richa Singh,Ms. Pratima Rani, Sadashiv, Advs. for the Petitioner.

Tushar Mehta, SG, Chirag M. Shroff, Kanu Agrawal, Ms. SwatiGhildiyal, B.V. Balaram Das, Ms. Seema Kushwaha, Ms. Yashika Verma,Ms. Abhilasha Bharti, Advs. for the Respondents.

The Order of the Court was delivered by

R. BANUMATHI, J.

1. This writ petition has been filed under Article 32 of theConstitution of India by the petitioner-Vinay Sharma – death-rowconvict. The petitioner has filed the writ petition challenging the rejectionof his mercy petition by the President of India and seeking commutationof his death sentence inter alia on the grounds:- (i) Non-furnishing ofrelevant materials under RTI Act; (ii) non-consideration of relevantmaterial; (iii) torture; (iv) mental illness; (v) consideration of irrelevantmaterial by the respondent authorities; and (vi) illegal solitary confinement.

2. The petitioner is death-row convict in Nirbhaya’s case whichrelates to the gang rape of the victim in the moving bus in Delhi on thenight of 16/17.12.2012. The trial court by its judgment dated 10.09.2013convicted the petitioner and other co-accused in SC No.114 of 2013under Sections 120-B, 365, 366 read with Section 120-B IPC, 307 readwith 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-BIPC, 201 read with Section 120-B IPC and 412 IPC. The trial courtimposed the death sentence on the petitioner and other co-accused bythe order dated 13.09.2013. The High Court by its judgment dated13.03.2014 confirmed the conviction of the petitioner and co-accusedand also the death sentence imposed upon them. For awarding deathsentence, the trial court and the High Court have recorded detailed

Areasonings that the incident was gruesome and falling within the categoryof “rarest of rare cases”. The Supreme Court by its judgment dated05.05.2017 in Mukesh and Another v. State (NCT of Delhi) and Others(2017) 6 SCC 1 confirmed the conviction and also the death sentenceand dismissed the appeal preferred by the petitioner and other co-accused. After referring to various judgments and by elaborateBreasonings, the Supreme Court held that there were no extenuating ormitigating circumstances. The review petition was heard at length bythe Supreme Court in the open court and the same was considered anddismissed by the order dated 09.07.2018.

3. On 07.01.2020, learned Sessions Court, Patiala House issuedCan execution warrant to execute the petitioner on 22.01.2020. On08.01.2020, petitioner filed curative petition before the Supreme Courtand the same was dismissed on 14.01.2020. After rejection of co-accusedMukesh’s mercy petition, Sessions Court issued fresh warrant forexecution directing that the petitioner and the co-accused to be executedDon 01.02.2020. On 10.01.2020, petitioner’s counsel sought for thedocuments from the Superintendent and after obtaining the documents,the petitioner preferred the mercy petition to the President of India on29.01.2020. The President of India rejected the mercy petition on01.02.2020 and the same was communicated to the petitioner in TiharCentral Jail on 01.02.2020.E

4. On 31.01.2020, learned Sessions Judge passed an orderpostponing the execution of the death warrant. The criminal revisionpetition filed by the Union of India has been disposed of by the HighCourt by its order dated 05.02.2020. Challenge in this writ petition is therejection of mercy petition by the President of India under Article 72 ofFthe Constitution on 01.02.2020.

Contentions:-

5. Dr. A.P. Singh, learned counsel appearing on behalf of petitionerVinay Sharma challenged the rejection of his mercy petition by theGPresident of India contending that the Lieutenant Governor and HomeMinister, NCT of Delhi have not signed the recommendation for rejectionof the petitioner’s mercy plea. It was submitted that the relevant materialslike the case records, correct medical status report of the petitioner,Social Investigation Report and the nominal roll of the petitioner werenot placed before the President of India and the concerned authoritiesH

and these documents were kept out of consideration and only irrelevantmaterials were placed before the President of India which according tothe learned counsel, vitiates the order of rejection of mercy petition. Asper Dr. A.P. Singh, he approached the respondents authorities that isoffice of the President of India, Lieutenant Governor, Ministry of HomeAffairs and the Department of Home, Govt. of NCT of Delhi under theRight to Information Act, 2005 and filed RTI application requesting forrecords pertaining to the rejection of the mercy petition of the petitioner;however, the same have not been furnished to nor was there any replyto his application. However, the learned counsel submitted that he waspermitted to peruse the relevant file. According to the learned counsel,without access to the records, the petitioner cannot exercise his rightunder Article 21 of the Constitution and he cannot challenge the orderrejecting his mercy petition.

6. It is the further argument of the learned counsel for the petitionerthat petitioner Vinay Sharma was only 19 years old and is not habitualoffender and hails from lower class of society and these aspects couldhave been considered only by thorough Social Investigation Reportwhich was not placed before the President of India.

7. The learned counsel submitted that the petitioner was kept insolitary confinement even while his mercy petition was still pending beforethe President of India and such illegal confinement was unfair and inviolation of Sunil Batra v. Delhi Administration and Others (1978) 4SCC 494 and this becomes ground for commutation of death sentence.It was further urged that the petitioner was tortured in the jail not onlyphysically and there were also mental tortures and on number of days,petitioner Vinay Sharma was sent to medical treatment and also forpsychological treatment. It is the claim of the learned counsel that thepetitioner has been on psychological medication and diagnosed with theadjustment disorder and that as per Delhi Prisons Rules, the petitionershould have been provided with proper care and treatment for mentalillness and on the basis of the medical records. It is the claim of thelearned counsel that the prisoners with medical illness and mental illnesscannot be executed in terms of the UN General Assembly Resolutionsas referred to in Shatrughan Chauhan and Another v. Union of Indiaand Others (2014) 3 SCC 1 and other Union Treaties.

8. Countering the above arguments, Mr. Tushar Mehta, the learnedSolicitor General has submitted that all the relevant materials were placed

Abefore the concerned authorities and the mercy petition was forwardedto the President of India along with all those documents including thedetails of the court cases, records of the case, medical record, SocialInvestigation Report. It was submitted that the mercy petition along withthe relevant documents was received by the Ministry of Home Affairswho have perused and with the appropriate note file, thereafter documentsBwere placed before the President of India with detailed Note File.Insofar as the alleged medical illness/mental illness of the petitioner,learned Solicitor General submitted that the petitioner was regularlychecked and the Medical Officer In-Charge, Central Jail Hospital hasissued the medical report stating that the petitioner was psychologicallyCwell adjusted and his general condition is stable and the medical reportof the petitioner has been placed before the President of India. Drawingour attention to the affidavit filed by the Director General (Prisons),Tihar Jail, it was submitted that the petitioner was never placed in solitaryconfinement and was placed in single room with iron bars and thepetitioner intermittently mingled with other prisoners. The learned SolicitorDGeneral submitted that the scope of judicial review of the order passedby the President of India is very limited and the contentions urged onbehalf of the petitioner would not fall within the grounds of review aslaid down by various judgments of this Court and prayed for dismissal ofthe writ petition.E

9. In this writ petition filed under Article 32 of the Constitution,the petitioner challenges the order of rejection of his mercy petition bythe President of India inter alia on various grounds that the settledprinciples of consideration of mercy petition have not been followed andthat the relevant materials were not placed before the President of India.F

10. As per Article 72 of the Constitution, the President of Indiashall have the power to grant pardons, reprieves, respites or remissionsof punishment or to suspend, remit or commute the sentence of anyperson convicted of any offence. As per Article 72(1)(c) of theConstitution, the power is inclusive of commutation in cases where theGsentence is sentence of death. Under Article 161 of the Constitution,similar is the power of the Governor to give relief to any person convictedof any offence against any law relating to matter to which the executivepower of the State extends. The disposal of the petitions filed underArticles 72 and 161 of the Constitution requires consideration of variousfactors i.e. the nature of crime, the manner in which the crime isH

committed and its impact on the society and that the time consumed inthis process cannot be characterised as delay. As held in Devender PalSingh Bhullar v. State of (NCT of Delhi) (2013) 6 SCC 195 that thedisposal of the mercy petitions filed under Articles 72 and 161 of theConstitution of India requires consideration of various factors.

11. The grounds for judicial review of rejection of mercy petitionunder Article 72 of the Constitution has been considered in Satpal v.State of Haryana (2000) 5 SCC 170 and the Constitution Benchjudgment in Bikas Chatterjee v. Union of India and Others (2004) 7SCC 634 and Shatrughan Chauhan. After referring to variousdecisions, the Supreme Court considered the power of the President ofIndia or the Governor of the State under Articles 72 and 161 of theConstitution and observing that the power vested in the President ofIndia under Article 72 and the Governor under Article 161 of theConstitution is constitutional duty, in Shatrughan Chauhan, it washeld as under:-“14. Both Articles 72 and 161 repose the power of the People inthe highest dignitaries i.e. the President or the Governor of State,as the case may be, and there are no words of limitation indicatedin either of the two Articles. The President or the Governor, asthe case may be, in exercise of power under Articles 72/161respectively, may examine the evidence afresh and this exerciseof power is clearly independent of the judiciary. This Court, innumerous instances, clarified that the executive is not sitting as acourt of appeal, rather the power of President/Governor to grantremission of sentence is an act of grace and humanity inappropriate cases i.e. distinct, absolute and unfettered in itsnature.”

19. In concise, the power vested in the President under Article 72and the Governor under Article 161 of the Constitution is aconstitutional duty. As result, it is neither matter of grace nora matter of privilege but is an important constitutional responsibilityreposed by the People in the highest authority. The power ofpardon is essentially an executive action, which needs to beexercised in the aid of justice and not in defiance of it. Further, itis well settled that the power under Articles 72/161 of the

AConstitution of India is to be exercised on the aid and advice ofthe Council of Ministers.”

12. In number of decisions, the Supreme Court has taken theconsistent view that the executive orders under Articles 72 and 161 ofthe Constitution should be subject to limited judicial review. In WP(Crl.)BD No.3334 of 2020 - similar petition filed by co-accused Mukesh Kumar,we have referred to number of judgments which have elaboratelyconsidered the scope of judicial review of the decision of the Presidentof India on petition under Article 72 of the Constitution of India. It isnot necessary to refer to all those decisions referred to in WP(Crl.) DNo.3334 of 2020. Suffice to refer to the Epuru Sudhakar and AnotherCv. Govt. of A.P. and Others (2006) 8 SCC 161 and ShatrughanChauhan. In Epuru Sudhakar, the Court has referred to the variousgrounds available for limited judicial review under Article 72 of theConstitution, it was held as under:-

“34. The position, therefore, is undeniable that judicial review ofDthe order of the President or the Governor under Article 72 orArticle 161, as the case may be, is available and their orders canbe impugned on the following grounds:

(a) that the order has been passed without application of mind;

E(b) that the order is mala fide;

(c) that the order has been passed on extraneous or whollyirrelevant 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 learnedamicus curiae; one relating to the desirability of indicating reasonsin the order granting pardon/remission while the other was anequally more important question relating to power to withdrawthe order of granting pardon/remission, if subsequently, materialsGare placed to show that certain relevant materials were notconsidered or certain materials of extensive value were kept outof consideration. According to learned amicus curiae, reasons areto be indicated, in the absence of which the exercise of judicialreview will be affected.”

13. In Shatrughan Chauhan, the Supreme Court considered thepower of the President or the Governor of the State under Articles 72and 161 of the Constitution and observing that it is constitutional duty,held as under:-

“14. Both Articles 72 and 161 repose the power of the People inthe highest dignitaries i.e. the President or the Governor of State,as the case may be, and there are no words of limitation indicatedin either of the two Articles. The President or the Governor, asthe case may be, in exercise of power under Articles 72/161respectively, may examine the evidence afresh and this exerciseof power is clearly independent of the judiciary. This Court, innumerous instances, clarified that the executive 8 is not sitting asa court of appeal, rather the power of President/Governor to grantremission of sentence is an act of grace and humanity inappropriate cases i.e. distinct, absolute and unfettered in its nature.

19. In concise, the power vested in the President under Article 72and the Governor under Article 161 of the Constitution is aconstitutional duty. As result, it is neither matter of grace nora matter of privilege but is an important constitutional responsibilityreposed by the People in the highest authority. The power ofpardon is essentially an executive action, which needs to beexercised in the aid of justice and not in defiance of it. Further, itis well settled that the power under Articles 72/161 of theConstitution of India is to be exercised on the aid and advice ofthe Council of Ministers.”

14. In the light of the above principles, let us consider the presentwrit petition and the grounds urged by the petitioner. The petitioner hasprimarily raised the following grounds to challenge the order of rejectionof his mercy petition:-

(i)non-furnishing of copy of records pertaining to the rejectionof the mercy petition of the petitioner under Right toGInformation Act, 2005;

(ii)relevant materials were kept out of consideration;

(iii)torture while in custody and consequential illness and mentalillness of the petitioner and non-placing of materialsHpertaining to health condition of the petitioner;

A(iv)illegal solitary confinement; and

(v)Bias order was passed with prejudiced mind.

15. Re. Contention: Records not made available to thepetitioner under RTI Act : Learned counsel for the petitioner whileseeking to put forth the contention would submit that he had made anBapplication to the office of the President of India, Lieutenant Governor,Ministry of Home Affairs and the Department of Home, Govt. of NCTof Delhi under the Right to Information Act, 2005 seeking copies ofcertain documents from the file which were relevant in the context ofconsideration of the mercy petition. However, the same has not beenCreplied to. In that regard, the learned counsel contended that he waspermitted to peruse the records and since the copies were not madeavailable, he be permitted to peruse the original file and make hissubmissions in the court. Insofar as the grievance raised by the learnedcounsel for the petitioner that he had not been furnished copies underthe Right to Information Act, we do not find it appropriate to advert toDthat aspect of the matter since it is beyond the scope of consideration ina petition of the present nature.

16. In the writ petition filed under Article 32 of the Constitution ofIndia seeking judicial review of the order of the President passed underArticle 72 of the Constitution, the scope is very limited and the Court isEcalled upon to examine:- (i) where the order has been passed withoutapplication of mind; (ii) where the order has been passed on extraneousor wholly irrelevant considerations; (iii) that relevant materials have beenkept out of consideration; and (iv) the order suffers from arbitrariness.

17. Insofar as the contention by the learned counsel that the fileFbe made available to him, we are of the opinion that even such coursewould not be appropriate. During the course of hearing, we have rejectedthe request of the learned counsel appearing for the petitioner that heshould be permitted to peruse the file and then make the submission onbehalf of the petitioner. In any event, we have heard learned counsel forGthe petitioner exhaustively and the contentions with regard to the allegeddiscrepancies which is said to have been observed by the learned counselin the manner in which the file had been processed and has been takenup for consideration. Having taken note of such contention, this Courtthought it fit to look into the file to satisfy itself as to whether theprocedure as contemplated has been followed. Accordingly, we haveH

adopted that course. In that regard, from the file the learned SolicitorGeneral has referred to the various documents/enclosures forwardedalong with the mercy petition, nature of consideration made from thestage of receipt of the mercy petition and an appropriate note put atvarious stages was referred and the file relating to the same was madeavailable to the Court. The consideration made by us is based on thecontents of the file. In any event, as already indicated above, the issuewith regard to the nature of documents required not being provided underthe Right to Information Act would not arise, keeping in view the definiteparameters under which the petition of the present nature is required tobe considered. Further, since this Court has examined the file as indicatedabove, 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 andHome Minister, Govt. of NCT of Delhi did not sign the relevantfile:- Learned counsel for the petitioner submitted that he was permittedto inspect the file and on such inspection, he has noticed that the LieutenantGovernor and Minister (Home), NCT of Delhi did not peruse the fileand on the other hand, upon the message sent by an official, they haverecommended the rejection of the mercy petition. It was further submittedthat on inspection of file, the learned counsel learnt that the relevant filehas not been signed by the Minister (Home), NCT of Delhi and theLieutenant Governor, Delhi. Upon perusal of the file relating to themercy petition of the petitioner, it is seen that the Minister (Home), NCTof Delhi and Lieutenant Governor, Delhi has perused the relevant fileand have signed the note to reject the mercy petition. We do not findany merit in the contention that there was non-application of mind on thepart of the Minister (Home), NCT of Delhi and Lieutenant Governor,Delhi.

19. Re. Contention – Non-placing of relevant materialsbefore the President of India and the relevant materials werekept out of consideration:- Placing reliance upon ShatrughanChauhan, it was submitted that the power to commute death sentenceis not an act of grace but constitutional responsibility of the Presidentof India or Governor of State. It was submitted that all the relevantdocuments and materials as laid down in Shatrughan Chauhan caseand other judgments were not placed before the President of India.

ABC

A20. To satisfy ourselves, we have asked the learned SolicitorGeneral to produce the files containing the file relating to Govt. of NCTof Delhi and the office of Lieutenant Governor, Delhi and the file relatingto forwarding of the mercy petition of the petitioner from Govt. of NCTof Delhi to Ministry of Home Affairs and file containing the note put upbefore the President of India. Accordingly, three files pertaining to theBpetitioner have been produced before us which we have perused.Petitioner Vinay Sharma had earlier filed mercy petition which wasreceived by the President Secretariat on 04.10.2019. That mercy petitionwas forwarded by Govt. of NCT of Delhi along with enclosures asstated in the covering letter dated 02.12.2019. The learned SolicitorCGeneral submitted that the said mercy petition was specifically withdrawnand the petitioner had filed another mercy petition on 29.01.2020. Thesaid mercy petition was forwarded from the Govt. of NCT of Delhi toMinistry of Home Affairs on 30.01.2020 along with the enclosures statedin the covering letter dated 30.01.2020. It is seen from the coveringletter that various documents were placed before the President of IndiaDviz. (i) Recommendation of the Govt. of NCT of Delhi in regard to grantof clemency to the petitioner; (ii) Legible and clean copy each of thejudgment 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;E(vi) Details of the review/curative petitions pending in the Court filed bythe accused and other co-accused of the case, if any, along with presentstatus; (vii) The past criminal history of the prisoner, if any; (viii)Economical condition of the family of the prisoner; and (ix) Any otherdocuments related to the case (Order for execution on 01.02.2020).F21. Before placing the note file before the President of India, theMinistry of Home Affairs had placed the matter before the Hon’bleUnion Minister, Ministry of Home Affairs who applied his mind and by aspeaking order, recommended for rejection of the mercy petition. Byperusing the note put up before the President of India, we have seenthat all the documents enclosed along with mercy petition of the petitionerGand the submissions made by him in the mercy petition were taken intoconsideration. Upon perusal of the Note and the records, the Presidentof India rejected the mercy petition of the petitioner. Taking note of thedocuments forwarded along with the mercy petition and the note put upby the Ministry of Home Affairs before the President of India, the mercyH

petition was rejected. We find no merit in the contention that the relevantmaterials were kept out of consideration of the President of India.

22. Non-placing of relevant materials – medical status reportand the status report as per the mental health of the petitioner:-The learned counsel for the petitioner had taken us through the avermentsin the petition and submitted that torture, cruelty and inhuman treatmentof 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 oftimes, he was taken to Central Jail Hospital and the petitioner was giventreatment repeatedly for those complaints. It was contended that due toinhuman torture and degrading treatment suffered by the petitioner duringhis incarceration, the petitioner developed mental illness and caused self-harm to himself on several occasions. It was submitted that the medicalrecord, mental illness and the status report on the mental health of thepetitioner were not placed before the President of India. It was contendedthat in the mercy petition, the petitioner has narrated that the petitionerdid not receive adequate health care which would have caused his mentalillness and such mental illness and procedural lapses infringe the rightsof the petitioner and entitling him for commutation. It was submittedthat the medical status report, Social Investigation Report and variousother relevant documents were not placed before the President of Indiaand thus, the relevant materials were kept out of consideration of thePresident of India.

23. Considering the question as to the relevant documents to beplaced before the President of India and after referring to EpuruSudhakar, in Shatrughan Chauhan, the Supreme Court held as under:-

“24.2. ……. in Epuru Sudhakar v. State of A.P. (2006) 8 SCC161, this Court held thus:

35. Two important aspects were also highlighted by learnedamicus curiae; one relating to the desirability of indicatingreasons in the order granting pardon/remission while the otherwas an equally more important question relating to power towithdraw 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 valuewere kept out of consideration. According to learned amicuscuriae, reasons are to be indicated, in the absence of whichthe exercise of judicial review will be affected.

103. ……. For illustration, on receipt of mercy petition, theBDepartment concerned has to call for all the records/materialsconnected with the conviction. Calling for piecemeal recordsinstead of all the materials connected with the conviction shouldbe deprecated. When the matter is placed before the President, itis incumbent on the part of the Home Ministry to place all thematerials such as judgment of the trial court, High Court and theCfinal court viz. Supreme Court as well as any other relevant materialconnected with the conviction at once and not call for thedocuments in piecemeal.”24. By perusal of the file produced before us, it is seen that themedical report of the petitioner along with the treatment and his latestDmedical report dated 30.01.2020 was placed before the concernedauthorities which in turn, was placed before the President. As seen fromthe enclosures in the forwarding letter of the mercy petition dated30.01.2020, latest medical status report dated 30.01.2020 issued byDr. Akash Narade, Senior Medical Officer and other medical reportsEand the treatment given to the petitioner, have been placed before thecompetent authority which in turn, were forwarded to the President ofIndia. In the medical status report, Dr. Akash Narade has referred tothe details of the treatment of the petitioner and certified that the petitioneris psychologically well adjusted and he was being provided with regulartherapy sessions by specialized therapists and the general condition ofFthe petitioner is stable. There is no merit in the contention that the medicalreport of the petitioner has not been placed before the President.

25. The alleged suffering of the petitioner in the prison cannot bea ground for judicial review of the executive order passed under Article72 of the Constitution of India rejecting petitioner’s mercy petition. AsGper the settled legal position in Narayan Dutt and Others vs. State ofPunjab and Another (2011) 4 SCC 353 and Epuru Sudhakar, exerciseof power under Articles 72 and 161 of the Constitution of India is subjectto challenge only on the grounds indicated thereon. When the highestconstitutional authority, upon perusal of the Note and the variousHdocuments placed along with mercy petition, has taken decision to

reject the mercy petition, it cannot be contended that the highestconstitutional authority had not applied its mind to the documents.

26. Learned counsel for the petitioner then urged that the petitionercomes from poor economic and social background and the SocialInvestigation Report of the mercy petition has not been forwarded alongwith the mercy petition. This contention again has no force. As seenfrom the list of enclosures sent along with the mercy petition, it is seenthat the economic condition of the family of the petitioner and his FamilyEconomic Status have been enclosed as enclosure “H”. It is to be pointedout that the petitioner had earlier filed mercy petition in October, 2019and said mercy petition was forwarded along with enclosures from theNCT of Delhi to Ministry of Home Affairs on 02.12.2019. Whileforwarding the said mercy petition, Social Investigation Report containingthe economic conditions of the family of the petitioner was enclosed asenclosures. While forwarding the mercy petition dated 30.01.2020, thesaid Social Investigation Report dated 30.11.2019 containing familybackground of the petitioner and economic status of the family and otherdetails were again forwarded. There is no merit in the contention thatthe Social Investigation Report was not placed before the President forconsideration and the relevant materials were kept out of considerationof the President.

Solitary Confinement:-

27. Learned counsel appearing for the petitioner argued that thepetitioner was illegally segregated and put in solitary confinement priorto rejection of his mercy petition in violation of law laid down in SunilBatra. In the said case, it was held by the Supreme Court that “a personis under sentence of death” only after the mercy petition is rejected bythe Governor and the President of India and on further application, thereis no stay of execution by the authorities. It is therefore contended thatsolitary confinement prior to rejection of mercy petition by the Presidentof India is unconstitutional.28. According to the petitioner, he has been kept in solitaryconfinement for period of one year. This contention is however refutedby the respondents. In the affidavit dated 13.02.2020 filed by the DirectorGeneral (Prisons), Tihar Jail, it is stated that for security reasons, thepetitioner was placed in one ward having multiple single rooms andbarracks. It is further stated that during that limited period, the petitioner

Awas kept in one of the single rooms and during such duration, wheneverall prisoners came out, the petitioner-convict was also coming out. It isstated that the single room where the petitioner was placed had ironbars open to air and the same cannot be equated with solitary confinementas the petitioner was permitted to come out and mingle with other inmatesat regular intervals on daily basis like other prisoners. Further, it hasBbeen submitted that such placement of the petitioner in single roomwas for limited duration and intermittent period either for security reasonsor other reasons in the interest of convict. It is clear from the affidavitfiled by the Director General (Prisons) that the petitioner was not kept insolitary confinement; rather he was kept in protective custody whichCwas for the benefit of the petitioner 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 solitaryconfinement in violation of the principles of Sunil Batra, does not meritacceptance and this cannot be ground for review of the order rejectingthe mercy petition of the petitioner.D

29. Bias Order was passed on irrelevant considerations:-.Another ground argued by the learned counsel for the petitioner is thealleged bias caused to the case of the petitioner because of the statementsmade by the Ministers in the Delhi Government as well as in the UnionGovernment which have led to pre-judging the outcome of the petitioner’sEmercy petition even before it was placed before the President of Indiafor consideration. The petitioner has referred to the various statementsmade by the Ministers to the effect that the death sentence be awardedto the convicts to contend that such public statements had the effect ofinfluence “aid and advice” tendered by the Council of Ministers of Delhi

Fto the Lieutenant Governor or by Council of Ministers in the CentralGovernment to the President and the order of rejection is vitiated bybias. As discussed earlier, note put up before the President is detailedone and all the relevant materials were placed before the President andupon consideration of the same, the mercy petition was rejected. Thepublic statements said to have been made by the Ministers, cannot beGsaid to have any bearing on the “aid and advice” tendered by the Councilof Ministers of Delhi to the Lieutenant Governor or by Council ofMinisters in the Central Government to the President.

30. The petitioner filed curative petition before the Supreme Courtand the same was dismissed on 14.01.2020. The petitioner filed mercyH

petition on 29.01.2020 and the same was forwarded by NCT of Delhi tothe Ministry of Home Affairs on 30.01.2020. The President of Indiarejected the mercy petition on 01.02.2020 and the same wascommunicated to the petitioner in Tihar Central Jail on 01.02.2020. Aspointed out earlier, the case records, judgments of the trial court, HighCourt and the Supreme Court, clean copy of records of the case, NominalRoll of the petitioner, medical report of the petitioner, Social InvestigationReport and other relevant documents were forwarded to the Ministry ofHome Affairs. The note put up before the President of India is detailedone and all the relevant materials were placed before the President andupon consideration of same, the mercy petition was rejected.31. As held by the Constitution Bench in Maru Ram v. Union ofIndia and Others (1981) 1 SCC 107 and referred to Bikas Chatterjee(2004) 7 SCC 634, the Court shall keep in mind that where the poweris vested in very high authority, it must be presumed that the saidauthority would act carefully after an objective consideration of all theaspects of the matter.

32. In the result, we do not find any ground for exercise of judicialreview of the order of the President of India rejecting the petitioner’smercy petition and this writ petition is liable to be dismissed. The writpetition is dismissed accordingly.

Devika Gujral

Writ petition dismissed.