Nirbhaya case convict Mukesh’s challenge against the President’s rejection of his mercy petition was on Wednesday dismissed by a three-judge Bench led by Justice R. Banumathi. The court said a quick decision by the President did not mean there was non-application of mind.
“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 [on mercy petitions by President/Governor] the Constitution. Nor does it suggest that there was pre-determined mind and non-application of mind,” Justice Banumathi, who wrote the judgment, held.
The Bench, also comprising Justices Ashok Bhushan and A.S. Bopanna, said the suffering experienced by death row convicts could not be a ground for commutation of the death penalty.
Mukesh had alleged solitary confinement and abuse at the hands of the jailors and fellow prisoners during his incarceration.
But the court said, “The alleged sufferings in the prison cannot be a ground for judicial review of the executive order passed under Article 72 of the Constitution rejecting the petitioner’s mercy petition”.
The court, after perusing the files containing the correspondence and official notings in original handed over to it by the Ministry of Home Affairs, concluded that all the relevant documents and records were considered before arriving at the decision to dismiss the mercy plea.
“All the relevant documents viz., the judgment of the trial court, the High Court and the Supreme Court and legible and clean copy of records of the case and the details of the review/curative petitions filed by the petitioner and other co-accused along with the present status and other details of the petitioner like past criminal history, economic condition of the family of the petitioner and the recommendation of the Government of NCT of Delhi were all sent by the NCT of Delhi along with mercy petition to be placed before the President of India”, the court observed.
It was not necessary that each and every material relied upon by the petitioner-accused should have been placed before the President, it said.
Mukesh’s petition was filed under Article 32 of the Constitution. He had sought a stay of the execution of the death warrant. The Sessions Court had ordered the death sentence to be carried out on February 1. He had asked the court to call for his medical records, dating back to the time of his arrest and incarceration, which were placed before the President for a decision on his mercy plea. He had also sought for the jail records of his solitary confinement.
Death row convicts are placed in solitary confinement.
Juvenility plea
Mukesh had moved the Supreme Court shortly after it rejected a juvenility plea made by another Nirbhaya convict, Pawan Kumar Gupta. Pawan had claimed he was a juvenile at the time of the crime.
The court also recently dismissed a petition filed by one of the four condemned men, Akshay Singh, to review its May 5, 2017 judgment confirming the death penalty.
On January 28, Akshay filed a curative petition alleging that making the “collective conscience of society” a factor while deciding on whether or not to award the death penalty naturally prejudices the case against the accused.
Akshay, Mukesh, Pawan and Vinay brutally gangraped a 23-year-old paramedical student in a moving bus on the intervening night of December 16-17, 2012. She died of her injuries a few days later.
An accused, Ram Singh, allegedly committed suicide in the Tihar jail. A juvenile, who was among the accused, was convicted by a juvenile justice board. He was released from a reformation home after serving a three-year term.
The Union government recently moved an application for fixing strict guidelines for carrying out death sentences, saying that convicts tend to misuse the legal process by repeatedly filing a variety of pleas in the court.
The Chief Justice of India recently observed orally that death row convicts could not seek legal remedies endlessly and it was important that death penalty reached finality.
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