MUKESH KUMAR versus UNION OF INDIA AND OTHERS on 29 January 2020

[2020] 1 S.C.R. 761

MUKESH KUMAR

v.

UNION OF INDIA AND OTHERS

(Writ Petition (Criminal) 40 of 2020)

JANUARY 29, 2020

[R. BANUMATHI, ASHOK BHUSHANAND A.S. BOPANNA, JJ.]

Constitution of India – Arts. 32, 72 and 161 – Rejection ofmercy petition filed by a death-row convict – Judicial review of –Petitioner was convicted in Nirbhaya’s case which relates to thegang rape of the victim – The Trial Court recorded the incidentwithin the category of ‘rarest of rare cases’ and sentenced thepetitioner to death – The High Court and the Supreme Courtconfirmed the death sentence – The petitioner, after exhausting allhis remedies filed mercy petition on 14.01.2020 addressed to thePresident of India u/Art. 72 and Lieutenant Governor u/Art. 161 ofthe Constitution through the Superintendent, Tihar Jail – ThePetitioner’s mercy petition was rejected by respondent no.1-Lieutenant Governor on 15.01.2020 and by the President of Indiaon 17.01.2020 – Writ Petition by the petitioner before the SupremeCourt – The petitioner sought commutation of his death sentenceinter alia on the grounds: (i) Relevant materials were not placedbefore the President of India and they were kept out of considerationwhile considering the mercy petition; (ii) There was a pre-determinedstance and complete non-application of mind in rejection of themercy petition; (iii) the petitioner was under solitary confinementfor more than one and half years; (iv) Non-consideration of relevantcircumstances likes prisoners’ suffering in the Prison; (v) Non-observance of established rules and guidelines in considering thepetitioner’s mercy petition – Held: The Supreme Court has takenthe consistent view that the executive orders u/Arts. 72 and 161 ofthe constitution should be subject to limited Judicial review–Thetwo files containing communications of the Ministry of Home Affairs,NCT of Delhi and the office of Lieutenant Governor and filecontaining the note put up before the President of India were perused– It was found that all the relevant documents viz. the judgment of

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Athe Trial Court, High Court and the Supreme Court, records of thecase, details of the review/curative petitions and other details ofthe petitioner like past criminal history etc., the recommendation ofthe Government of NCT of Delhi were all sent and placed beforethe President of India along with mercy petition – Thus, there is nomerit in the contention that the relevant materials were kept out ofBthe consideration of the President – Further, it must be presumedwhere the power is vested in a very high authority, it must bepresumed that the said authority would act carefully after anobjective consideration of all the aspects – The quick rejectionpetitioner’s mercy petition is not a ground for review nor does itCsuggest that there was pre-determined and non-application of mind– Insofar as alleged sufferings of the petitioner in the prison isconcerned, as per the settled legal position held in Narayan Duttand others v. State of Punjab and another, Epuru Sudhakar andAnother v. Govt. of A.P. & Ors. and Shatrughan Chauhan andanother v. Union of India and others, the exercise of power u/Art.D72/161 of the Constitution is subject to challenge only on the groundsindicated thereon – The alleged sufferings in prison cannot be aground for judicial review of the executive order passed u/Art. 72of the Constitution rejecting the petitioner’s mercy petition –Resultantly, there were no grounds for exercise of judicial review ofEthe order of the President of India rejecting the petitioner’s mercypetition.

Shatrughan Chauhan and another v. Union of Indiaand others (2014) 3 SCC 1 : [ 2014] 1 SCR 609 (6);Bikas Chatterjee v. Union of India and Another (2004)F7 SCC 634 (14); Epuru Sudhakar and Another v. Govt.of A.P. and Others (2006) 8 SCC 161 : [2006] 7 Suppl.SCR 81 (16) – relied on.

Mukesh and Another v. State (NCT of Delhi) and Others(2017) 6 SCC 1 : [2017] 6 SCR 1 (2); Sunil Batra v.GDelhi Administration and Others (1978) 4 SCC 494 :[1979] 1 SCR 392 (6); Devender Pal Singh Bhullar v.State of (NCT of Delhi) (2013) 6 SCC 195 : [2013] 6SCR 676 (10); Kehar Singh v. Union of India (1989) 1SCC 204 : [1988] 3 Suppl. SCR 1102 (11); Satpal v.

State of Haryana (2000) 5 SCC 170 : [2000] 3 SCR858 (14); Narayan Dutt and others v. State of Punjaband another (2011) 4 SCC 353 : [2011] 4 SCR 983(16);Maru Ram v. Union of India and others (1981) 1 SCC107(26); Narayan Dutt and others v. State of Punjaband another (2011) 4 SCC 353 : [2011] 4 SCR 983(31) – referred to.

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CRIMINAL ORIGINAL JURISDICTION: Writ Petition(Criminal) No. 40 of 2020.

[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]

Ms. Anjana Prakash, Ms. Rebecca John, Sr. Advs., Ms. VrindaGrover, Siddhartha Sharma, Mrigank Prabhakar, Ms. Naulshree Pathak,Harsh Bora, Ms. Ratha Appnender, Ms. Praavita Kashyap, Ms. JoshikaSaraf, Gautam Prabhakar, Ms. Sakshi Banga, Ms. Tanima Kishore, Advs.for the Petitioner.

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Tushar Mehta, SG, Chirag M. Shroff, Ms. Supriya Juneja,Ms. Swati Ghildiyal, Kanu Agrawal, Jitendra Kr. Jha, Ms. SeemaKoshwaha, S. Nayanam, Abhilasha Bharti, Ms. Vandana Ranjan, RajatNair, B.V. Balaram Das, Advs. for the Respondents.

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AThe Order of the Court was passed by

R. BANUMATHI, J.

This writ petition has been filed under Article 32 of the Constitutionof India by the petitioner-Mukesh Kumar - a death-row convict. Thepetitioner has filed the writ petition challenging the rejection of his mercyBpetition by the President of India and seeking commutation of his deathsentence inter alia on the following grounds:-

(i) Relevant materials were not placed before the President ofIndia and they were kept out of consideration whileconsidering the mercy petition; C

(ii) The mercy petition was rejected swiftly and there was pre-determined stance and complete non-application of mind inrejection of the mercy petition;

(iii) Solitary confinement of the petitioner for more than one andDhalf years due to which the petitioner has developed severepsychiatric ailments;

(iv) Non-consideration of relevant circumstances like prisoners’suffering in the prison and consideration of extraneous andirrelevant circumstances; and E(v)Non-observance of established rules and guidelines inconsidering the petitioner’s mercy petition.

2. The present writ petition relates to rejection of petitioner’s mercypetition by the President of India. The petitioner is a death-row convictin Nirbhaya’s case which relates to the gangrape of the victim in theFmoving bus in Delhi on the night of 16.12.2012. The trial court convictedthe petitioner and other co-accused by judgment dated 13.09.2013. TheHigh Court confirmed the death sentence by its judgment dated13.03.2014 and the Supreme Court confirmed the same vide judgmentdated 05.05.2017. In the judgment dated 05.05.2017 in Mukesh andAnother v. State (NCT of Delhi) and Others (2017) 6 SCC 1, thisGCourt after referring to various judgments and by elaborate reasoningsheld that there were no extenuating or mitigating circumstances. Likewise,the trial court and the High Court have also recorded detailed reasoningsthat the incident was brutal and falling within the category of “rarest of H

rare cases”. The review petition was heard by the Supreme Court inopen court and the same was considered and dismissed by judgmentdated 09.07.2018. In the writ petition, the petitioner has enumerateddates and events right from day of petitioner’s arrest i.e. 18.12.2012from his village in connection with FIR No.413/2012 registered at VasantVihar P.S. till 14.01.2020 – the date on which the Supreme Court dismissedthe petitioner’s curative petition.

3. According to the petitioner, after exhausting all his remedies,he has filed mercy petition on 14.01.2020 addressed to the President ofIndia under Article 72 of the Constitution of India and to the LieutenantGovernor under Article 161 of the Constitution and the through theSuperintendent, Tihar Jail No.2. The Superintendent, Tihar Jail No.2forwarded the petitioner’s mercy petition along with his nominal roll,latest medical report of the petitioner, trial court judgment and details ofthe punishment of the petitioner to Officer in Charge – Legal, Prison,Tihar Jail for processing of the petitioner’s mercy petition. The grievanceof the petitioner is that despite a provision for recommendation by thejail superintendent in nominal roll, the Superintendent (Prison), Tihar Jailwho had the opportunity to observe the petitioner on a daily basis is theperson who is best placed to opine whether the petitioner has repentedand reformed and is eligible for grant of pardon. According to thepetitioner, his conduct in prison and his capacity to reform, is a crucialconsideration for mercy.

4. It is alleged that within 24 hours of petitioner’s mercy petition,on 15.01.2020, the Deputy Chief Minister announced that the Governmenthas recommended the rejection of the mercy petition of the petitionerand sent it to the Lieutenant Governor. The petitioner’s mercy petitionwas rejected by respondent No.1 – Lieutenant Governor on 15.01.2020.On 16.01.2020, respondent No.2-NCT of Delhi has recommended therejection of petitioner’s mercy petition and the same was forwarded tothe President of India. The petitioner’s mercy petition was rejected bythe President of India on 17.01.2020. Pursuant to the rejection ofpetitioner’s mercy petition, learned Sessions Judge on 17.01.2020 issueda fresh execution warrant directing the petitioner to be executed on01.02.2020.

5. Since the petitioner did not possess any documents pertainingto the consideration of his mercy petition, on 17.01.2020, petitioner throughhis lawyer moved the application before the Superintendent, Tihar Jail, AB

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ASecretary Home Department, Government of NCT and Secretary HomeDepartment, UOI requesting for all documents pertaining to his mercypetition. On 20.01.2020, petitioner also filed RTI application before theSuperintendent, Tihar Jail, Secretary Home Department, Governmentof NCT and Secretary Home Department, UOI requesting for supply ofall documents pertaining to his mercy petition. In response to theBapplication moved through petitioner’s lawyer as well as his RTIapplication dated 20.01.2020, the Superintendent, Tihar Jail provided thepetitioner with the documents pertaining to the petitioner’s mercy petitionbetween 20.01.2020 and 23.01.2020.

6. Ms. Anjana Prakash, learned Senior counsel for the petitionerCsubmitted that power under Article 72 of the Constitution is theconstitutional duty and is to be exercised in the light of the guidelines andwith great care and circumspection. Placing reliance upon ShatrughanChauhan and another v. Union of India and others (2014) 3 SCC1, it was submitted that while forwarding the mercy petition, all the relevantDdocuments like case records, judgment of the trial court, High Court andthe Supreme Court should be placed before the President of India an theHome Ministry is to send their views within reasonable time. Placingreliance upon communication from the Superintendent, Tihar Jail dated14.01.2020, the learned Senior counsel submitted that as laid down inShatrughan Chauhan, the relevant materials had not been placed beforeEthe President of India and the relevant materials had been kept out ofconsideration. The learned Senior counsel inter alia submitted that inviolation of the principles laid down in Sunil Batra v. DelhiAdministration and Others (1978) 4 SCC 494, the petitioner had beenkept in solitary confinement and this aspect has not been taken intoFconsideration. It was further contended that the sufferings of the petitionerin the prison during the custody has not been taken into considerationwhile considering his mercy petition.

7. Refuting the contention of the petitioner, Mr. Tushar Mehta,learned Solicitor General submitted that while forwarding the mercyGpetition all the relevant materials as laid down in paras 23 and 24.2 ofShatrughan Chauhan have been placed before the President of India.The learned Solicitor General submitted that all the guidelines laid downin Shatrughan Chauhan and other judgments have been substantiallycomplied with. Insofar as the averments of solitary confinement, thelearned Solicitor General submitted that as per the affidavit of the DirectorH

General, Prisons, the petitioner was only kept in a single room with ironbars open to air and the petitioner was intermingling with other prisonersas per rules and the same cannot be equated to solitary confinement. Sofar as the averment as to quick rejection of the mercy petition, the learnedSolicitor General submitted that delay in disposal of the mercy petitionmay be a ground for consideration of the mercy petition; whereas quickconsideration of the mercy petition and rejection of the same cannot bea ground for judicial review of the order of the President under Article72 of the Constitution nor does it suggest that there was pre-determinedmind and non-application of mind.

8. We have heard Ms. Anjana Prakash, learned Senior counselappearing for the petitioner and Mr. Tushar Mehta, learned SolicitorGeneral appearing for Union of India and Govt. of NCT of Delhi andconsidered their submission and perused the averments made in thepetition.

9. What is impugned in this writ petition is the rejection of petitionunder Article 72 of the Constitution of India by the President of India on17.01.2020. 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 the various grounds that the settledprinciples of consideration of mercy petition have not been followed.

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 thesentence is a 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 a 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 iscommitted 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.

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11. After referring to Kehar Singh v. Union of India (1989) 1SCC 204 and other judgments, in Shatrughan Chauhan and anotherv. Union of India and others (2014) 3 SCC 1, the Supreme Courtconsidered the power of the President or the Governor of the Stateunder Articles 72 and 161 of the Constitution and observing that it is aconstitutional duty, held as under:- B

“14. Both Articles 72 and 161 repose the power of the People inthe highest dignitaries i.e. the President or the Governor of a 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 72/161Crespectively, 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 inDappropriate cases i.e. distinct, absolute and unfettered in itsnature.”

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19. In concise, the power vested in the President under Article 72and the Governor under Article 161 of the Constitution is aEconstitutional duty. As a result, it is neither a 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, itFis 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.”

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12. The manner of exercise of the power under the said Articlesis a matter of discretion. In Shatrughan Chauhan in para (25), theSupreme Court held that “the manner of exercise of the power underthe said Articles is primarily a matter of discretion and ordinarilythe courts would not interfere with the decision on merits. However,the courts retain the limited power of judicial review to ensure thatthe constitutional authorities consider all the relevant materialsbefore arriving at a conclusion.”

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MUKESH KUMAR v. UNION OF INDIA AND OTHERS[R. BANUMATHI, J.]

13. The Supreme Court has taken the consistent view that theexecutive orders under Articles 72 and 161 of the Constitution should besubject to limited judicial review. In Shatrughan Chauhan, it was heldas under:-

“22. ….. Accordingly, there is no dispute as to the settled legalproposition that the power exercised under Articles 72/161 couldbe the subject-matter of limited judicial review. (Vide Kehar Singhv. Union of India (1989) 1 SCC 204, Ashok Kumar v. Union ofIndia (1991) 3 SCC 498, Swaran Singh v. State of U.P. (1998)4 SCC 75, Satpal v. State of Haryana (2000) 5 SCC 170 andBikas Chatterjee v. Union of India (2004) 7 SCC 634.)”

14. The grounds for judicial review of rejection petition underArticle 72 of the Constitution of India by the President of India has beenlaid down in Satpal v. State of Haryana (2000) 5 SCC 170 which hasbeen referred to with approval by the Constitution Bench in BikasChatterjee v. Union of India and Another (2004) 7 SCC 634 whereinit was held as under:- “9. In a Division Bench decision of this Court in Satpal v. Stateof Haryana (2000) 5 SCC 170 these very grounds have beenrestated as: (i) the Governor exercising the power under Article161 himself without being advised by the Government; or (ii) theGovernor transgressing his jurisdiction; or (iii) the Governor passingthe order without application of mind; or (iv) the Governor’sdecision is based on some extraneous consideration; or (v) malafides. It is on these grounds that the Court may exercise its powerof judicial review in relation to an order of the Governor underArticle 161, or an order of the President under Article 72 of theConstitution, as the case may be.

10. In the case of Maru Ram v. Union of India, the Benchnoted that the power conferred by Article 72 is a high prerogativepower vested by the Constitution in the highest functionary of theUnion. The Constitution Bench has also held that while exercisingthe power of judicial review the Court shall keep in mind thatwhere a power is vested in a very high authority, it must bepresumed that the said authority would act properly and carefullyafter an objective consideration of all the aspects of the matterand further, the higher the power the more cautious would be itsexercise.”

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770SUPREME COURT REPORTS

A15. Although the decision of the President of India under Article72 of the Constitution of India is open to judicial review but the groundstherefore are very limited, the Constitution Bench in Bikas Chatterjeeheld as under:- “8. Although the decision of the President of India on a petitionBunder Article 72 of the Constitution is open to judicial review butthe grounds therefor are very very limited. In the ConstitutionBench decision in Maru Ram v. Union of India (1981) 1 SCC107 this Court has held that it is only a case of no consideration orconsideration based on wholly irrelevant grounds or an irrational,discriminatory or mala fide decision of the President of India whichCcan provide a ground for judicial review.”

16. In Epuru Sudhakar and Another v. Govt. of A.P. and Others(2006) 8 SCC 161, it was held as under:- “34. The position, therefore, is undeniable that judicial review ofthe order of the President or the Governor under Article 72 orDArticle 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 ofmind; 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 ofconsideration;F

(e) that the order suffers from arbitrariness.

35. Two important aspects were also highlighted by learnedamicus curiae; one relating to the desirability of indicating reasons in theorder granting pardon/remission while the other was an equally moreGimportant question relating to power to withdraw the order of grantingpardon/remission, if subsequently, materials are placed to show that certainrelevant materials were not considered or certain materials of extensivevalue were kept out of consideration. According to learned amicus curiae,reasons are to be indicated, in the absence of which the exercise ofjudicial review will be affected.”H

The same view was reiterated in Narayan Dutt and others v.State of Punjab and another (2011) 4 SCC 353.

17. It is the consistent view taken by this Court that the exerciseof power of judicial review of the decision taken by the President ofIndia on mercy petition is very limited and the same can be subject tochallenge only 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 whollyirrelevant considerations; (d) that relevant materials have been kept out of consideration;and (e) that the order suffers from arbitrariness.

18. 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 the mercy petition:-

(i) non-sending of relevant materials and non-application of mindand failure to consider relevant circumstances;

(ii) absence of recommendation of the Superintendent, Tihar Jailin nominal roll;

(iii) sufferings of the petitioner in the prison;

(iv) solitary confinement;

(v) the petition has been rejected swiftly without application ofmind.

19. Re: Contention: Non-placing of relevant materials beforethe President of India and relevant materials were kept out ofthe consideration:- Placing reliance upon Shatrughan Chauhan, Itwas submitted that the power to commute a death sentence is not an actof grace but a constitutional responsibility of the President of India orGovernor of a State. It was submitted that all the relevant documentsand materials as laid down in Shatrughan Chauhan case and otherjudgments ought to have been placed before the President of India.Drawing our attention to the communication dated 14.01.2020 from the A

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AOffice of the Superintendent, Central Jail, Tihar, it was submitted thatonly four documents as stated in Annexure P/2 viz. (i) Nominal Roll ofMukesh S/o Mange Lal; (ii) Latest Medical Report; (iii) Trial CourtJudgment; and (iv) Details of Punishments are said to have been forwardedand all the relevant materials have not been placed before the President.Learned Senior counsel has submitted that the documents like (i) DNABReport exhibited by PW 45; (ii) Odontology Report; (iii) Complaint underSection 154 Cr.P.C.; (iv) Case diary and charge sheet and such otherdocuments which would prove the innocence of the petitioner were notplaced before the President and thus the relevant materials were keptout of the consideration of the President of India.C

20. Considering the question as to the relevant documents to beplaced before the President of India and after referring to EpuruSudhakar v. State of A.P. (2006) 8 SCC 161, in Shatrughan Chauhan,the Supreme Court held as under:- “24.2. ……. in Epuru Sudhakar v. State of A.P. (2006) 8 SCCD161, this Court held thus:

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35. Two important aspects were also highlighted by learnedamicus curiae; one relating to the desirability of indicatingEreasons 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 materialswere not considered or certain materials of extensive valuewere kept out of consideration. According to learned amicusFcuriae, 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, theDepartment concerned has to call for all the records/materialsconnected with the conviction. Calling for piecemeal recordsGinstead 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 thefinal court viz. Supreme Court as well as any other relevant materialconnected with the conviction at once and not call for theHdocuments in piecemeal.”

21. The documents stated in Annexure P/2 sent by theSuperintendent, Central Jail, Tihar for consideration of the mercy petitionfiled by the petitioner were the documents sent to the Officer In-Charge(Legal), Prison Headquarters, Tihar. The four documents viz. (i) NominalRoll of Mukesh S/o Mange Lal; (ii) Latest Medical Report; (iii) TrialCourt Judgment; and (iv) Details of Punishments in Annexure P/2 wereprobably the only documents available with the Superintendent or calledfor from the Superintendent, Central Jail, Tihar. There is no merit in thecontention that only the above four documents were the materials placedbefore the President of India.

22. In this regard, the Joint Secretary, Ministry of Home Affairshas filed an affidavit stating that all the relevant documents as laid downin Paras (23) and (24.2) of Shatrughan Chauhan case were placedbefore the President and after detailed examination, the President hasrejected the mercy petition on 17.01.2020. To satisfy ourselves, we haveperused two files containing the communications of the Ministry of HomeAffairs, NCT of Delhi and the office of Lieutenant Governor and thefile containing the note put up before the President of India. From thecovering letter dated 15.01.2020 from NCT of Delhi addressed to DeputySecretary (Judicial), Ministry of Home Affairs, it is seen that all therelevant documents viz., the judgment of the trial court, High Court andthe Supreme Court and legible and clean copy of records of the caseand the details of the review/curative petitions filed by the petitioner andother co-accused along with the present status and other details of thepetitioner like past criminal history, economic condition of the family ofthe petitioner and the recommendation of the Government of NCT ofDelhi were all sent by the NCT of Delhi along with mercy petition to beplaced before the President of India. By perusal of the note, we haveseen that all the documents were taken into consideration and uponconsideration of the relevant records and the facts and circumstancesof the surrounding crime, the President has rejected the mercy petition.There is no merit in the contention that the relevant materials were keptout of the consideration of the President.

23. Insofar as the documents like (i) DNA Report exhibited byPW 45; (ii) Odontology Report; (iii) Complaint under Section 154 Cr.P.C;(iv) Case diary and charge sheet and other documents like DyingDeclaration, etc. are concerned, they are the materials upon whichreliance has been placed upon by the petitioner to put forth his defence.

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AThe defence of the petitioner and the above materials were consideredby the trial court, High Court and the Supreme Court and the defence toput forth by the petitioner has been rejected. It is not necessary thateach and every material relied upon by the petitioner-accused shouldhave been placed before the President. There is no merit in the contentionof the petitioner that relevant materials were kept out of the considerationBof the President.

24. Absence of recommendation of the Superintendent, TiharJail:- The Superintendent, Central Jail, Tihar has sent the Nominal Roll.Column No.23 of the Nominal Roll relates to “recommendations of theJail Superintendent, if any”. One of the grounds urged by the petitionerCis that forwarding of the mercy petition without recommendation of theSuperintendent of Jail which is the essential requirement as per theguidelines. According to the petitioner, the Superintendent of Jail is theright person to make recommendation as to the conduct of the petitionerin the jail and about his repentance and that the petitioner has reformed.DThe learned counsel for the petitioner contended that Column No. 23was left blank and thus, the guidelines had not been followed. It wassubmitted that recommendation of the Superintendent, Central Jail, Tiharought to have been called for as he is the only person who could havegiven his opinion that the prisoner’s conduct in prison is good and whetherthe petitioner repented and whether it is a fit case for consideration ofEmercy petition.

25. The nominal roll is sent by the Superintendent to give variousdetails as per the columns contained thereon. Though Column No.23relates to recommendations of the Jail Superintendent, it is not incumbentupon the Jail Superintendent to give his recommendations as the columnFcontains the word “recommendations of the Jail Superintendent, if any”.Though Column No.23 relates to recommendation by the Superintendent,Tihar Jail, the word “if any” indicates that the Superintendent may ormay not give his remarks/recommendations. That apart, as rightlycontended by the learned Solicitor General, considering the high positionGof the President of India and the constitutional duty which the Presidentis discharging, it may not be appropriate for the Superintendent to makethe recommendation nor was it necessary for the authorities to call forthe opinion of the Jail Superintendent as to the subsequent conduct ofthe prisoner while in prison unless the situation warrants.

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26. It is stated that the guidelines “Procedure Regarding Petitionsfor Mercy in Death Sentence Cases” issued by the Ministry of HomeAffairs, Government of India have been mentioned and the said sevenpoint guidelines are called “Guidelines for Dealing with Mercy Petitions”,read as under:- A

(i) Personality of the convict (such as age, sex or mentalBdeficiency).

(ii) Has the appellate court express doubt on the reliability ofevidence but has nevertheless decided on conviction?

(iii) Is it alleged that fresh evidence is obtainable, mainly with aCview to seeing whether a fresh inquiry is justified?

(iv) Has the Court, on appeal, enhanced the sentence?

(v) Is there any difference of opinion in the Bench of HighCourt judges necessitating reference to a third judge?

(vi) Was the evidence duly considered in fixing responsibility, ifDit was a gang murder case?

(vii) Were there long delays in the investigation and the trial?

The grievance of the petitioner is that respondents have rejectedthe petitioner’s mercy petition without any application of mind on accountof extraneous considerations which is wholly unsustainable in law. Asheld by the Constitution Bench in Maru Ram v. Union of India andothers (1981) 1 SCC 107 and others and referred to Bikas Chatterjee,the court must keep in view that where the power is vested in a veryhigh authority, it must be presumed that the said authority would takeinto consideration all the aspects of the matter. We find no reason tohold that the above guidelines were not kept in view.

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27. Learned counsel appearing for the petitioner has inter aliasubmitted that the petitioner has been in solitary confinement for morethan one and a half years and it is in gross violation of law laid down bythe Supreme Court in Sunil Batra v. Delhi Administration and Others(1978) 4 SCC 494 and Shatrughan Chauhan.

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28. Observing that the custodial segregation specified in Section30(2) of the Prisons Act is attracted, only after the mercy petition isrejected by the President or the Governor and only then the person is“under sentence of death” attracting custodial segregation specified in H

[2020] 1 S.C.R.

ASection 30(2) of the Prisons Act, in Shatrughan Chauhan, it was heldas under:- “90. It was, therefore, held in Sunil Batra v. Delhi Administration(1978) 4 SCC 494 that the solitary confinement, even if mollifiedand modified marginally, is not sanctioned by Section 30 of theBPrisons Act for prisoners “under sentence of death”. The crucialholding under Section 30(2) is that a person is not “under sentenceof death”, even if the Sessions Court has sentenced him to deathsubject to confirmation by the High Court. He is not “undersentence of death” even if the High Court imposes, by confirmationor fresh appellate infliction, death penalty, so long as an appeal toCthe Supreme Court is likely to be or has been moved or is pending.Even if this Court has awarded capital sentence, it was held thatSection 30 does not cover him so long as his petition for mercy tothe Governor and/or to the President permitted by the Constitution,has not been disposed of. Of course, once rejected by the GovernorDand the President, and on further application, there is no stay ofexecution by the authorities, the person is under sentence of death.During that interregnum, he attracts the custodial segregationspecified in Section 30(2), subject to the ameliorative meaningassigned to the provision. To be “under sentence of death” means“to be under a finally executable death sentence”.E

29. Though it is alleged that the petitioner has been in solitaryconfinement for 08 months and 09 days in violation of the principles ofthe Sunil Batra, the same is refuted by the respondents. In his affidavit,Director General, Prisons has denied the averment that the petitionerwas kept in solitary confinement. It is stated that for security reasons,Fthe petitioner was kept in one ward having multiple single rooms andbarracks and the said single room had iron bars open to air and the samecannot be equated with solitary confinement/single cell. It is stated thatthe prisoner/petitioner who was kept in the single room comes out andmixes up with the other inmates in the prison on daily basis like otherGprisoners as per rules. Considering the averments in the affidavit filedby the Director General, Prisons, the contention of the petitioner that hehas been kept in solitary confinement in violation of the principles ofSunil Batra v. Delhi Administration and Others (1978) 4 SCC 494cannot be countenanced. This cannot therefore be a ground for reviewof the order rejecting the petitioner’s mercy petition.H

30. Alleged sufferings in the prison:- Taking us through themercy petition, learned Senior counsel for the petitioner submitted thatin the mercy petition, the petitioner has narrated about the allegedsufferings and that he was beaten up in the prison and sexually harassedand was suffering everyday in the prison. The petitioner has furtheraverred that his brother Ram Singh was actually murdered though hisdeath was projected as “suicide” and that due to death of his brother, thepetitioner was living in “perpetual fear”. The learned Senior counselcontended that the averments made by the petitioner as to his sufferingsin the prison had not been taken into consideration while rejecting hismercy petition.

31. As per the settled legal position held in Narayan Dutt andothers v. State of Punjab and another (2011) 4 SCC 353, EpuruSudhakar and Another v. Govt. of A.P. and Others (2006) 8 SCC161 and Shatrughan Chauhan, the exercise of power under Article72/161 of the Constitution is subject to challenge only on the groundsindicated thereon. The alleged sufferings in the prison cannot be a groundfor judicial review of the executive order passed under Article 72 of theConstitution rejecting the petitioner’s mercy petition.

32. Consideration and quick rejection of petitioner’s MercyPetition- Not a ground for review:- On behalf of the petitioner, it wascontended that there was non-application of mind and the entire matterproceeded with bias and pre-determined mind. The learned Senior counselfor the petitioner submitted that after dismissal of the curative petitionon 14.01.2020, the petitioner submitted the mercy petition which wasforwarded by the Superintendent on the very same day and in less than24 hours of having received the petitioner’s mercy petition, the DeputyChief Minister, Govt. of NCT of Delhi announced that the governmenthad made the recommendation for rejection of the petitioner’s mercypetition. The learned Senior counsel for the petitioner contended that thepetitioner’s mercy petition was sent to the Lieutenant Governor at“lightening speed” and on 16.01.2020, the Delhi Govt. recommendedthe rejection of petitioner’s mercy petition in less than 24 hours andforwarded it to the President of India and the same was rejected by thePresident on 17.01.2020. It was therefore submitted that there was non-application of mind in rejection of the petitioner’s mercy petition as thesame has been rejected with “lightening speed” and with pre-determinedmind.

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A33. The petitioner filed the curative petition before the SupremeCourt on 08.01.2020 and the same was dismissed by the Supreme Courton 14.01.2020. The petitioner filed mercy petition addressed to thePresident of India under Article 72 of the Constitution of India and alsoto the Lieutenant Governor under Article 161 of the Constitution of Indiaon 14.01.2020. The Lieutenant Governor forwarded the same to theBMinistry of Home Affairs on 15.01.2020 with the relevant records. TheMinistry of Home Affairs forwarded the same to the President of Indiaon 16.01.2020 with the relevant records. After consideration of the matter,the President of India rejected the petitioner’s mercy petition on17.01.2020 and the petitioner was informed about the rejection.C

34. As held by the Constitution Bench in Maru Ram and referredto Bikas Chatterjee, the court shall keep in mind that where the poweris vested in a very high authority, it must be presumed that the saidauthority would act carefully after an objective consideration of all theaspects of the matter. As pointed out earlier, the note put up before theDPresident of India is a detailed one and that all the relevant materialswere placed before the President of India and upon consideration of thesame, the mercy petition was rejected. Merely because there was quickconsideration and rejection of the petitioner’s mercy petition, it cannotbe assumed that the matter was proceeded with pre-determined mind.

E35. As rightly contended by the learned Solicitor General, delay indisposal of mercy petition may be a ground calling for judicial review ofthe order passed under Article 72/161 of the Constitution. But the quickconsideration of the mercy petition and swift rejection of the same cannotbe a ground for judicial review of the order passed under Article 72/161of the Constitution. Nor does it suggest that there was pre-determinedFmind and non-application of mind.

36. 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 petition is liable to be dismissed. The writ petitionis dismissed accordingly.

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Ankit Gyan

Writ Petition dismissed.

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