Supreme Court Upholds Rejection of Mercy Petition in Nirbhaya Case: Mukesh Kumar vs. Union of India (29 January 2020)

Introduction

Date of the Judgment: 29 January 2020

Citation: Mukesh Kumar vs. Union of India and Others (2020) INSC 49

Judges: R. Banumathi, J., Ashok Bhushan, J., A.S. Bopanna, J. (authored by R. Banumathi, J.)

Can the Supreme Court interfere with the President of India’s decision to reject a mercy petition? The Supreme Court of India recently addressed this question in a case involving a death-row convict, Mukesh Kumar, in the infamous Nirbhaya case. The court examined whether the rejection of his mercy petition was done fairly and in accordance with established legal principles. This case highlights the delicate balance between the executive’s power of clemency and the judiciary’s role in ensuring justice.

The Supreme Court was tasked with determining whether the President’s decision to reject Mukesh Kumar’s mercy petition was lawful, considering the arguments that relevant materials were not considered, there was non-application of mind, and that the petitioner faced undue suffering in prison.

Case Background

The case revolves around Mukesh Kumar, a death-row convict in the Nirbhaya gang rape case of 16 December 2012. He was convicted by the trial court on 13 September 2013, and his death sentence was upheld by the High Court on 13 March 2014 and by the Supreme Court on 5 May 2017. The Supreme Court also dismissed his review petition on 9 July 2018 and curative petition on 14 January 2020.

Following the dismissal of his curative petition, Mukesh Kumar filed a mercy petition to the President of India under Article 72 of the Constitution and to the Lieutenant Governor under Article 161 of the Constitution on 14 January 2020. He sought commutation of his death sentence, alleging that relevant materials were not placed before the President, there was a pre-determined stance, he was kept in solitary confinement, and his suffering in prison was ignored.

The petitioner’s mercy petition was rejected by the Lieutenant Governor on 15 January 2020, by the Government of NCT of Delhi on 16 January 2020, and finally by the President of India on 17 January 2020.

Timeline

Course of Proceedings

The trial court convicted Mukesh Kumar and other co-accused on 13 September 2013, sentencing them to death. The High Court of Judicature at Delhi confirmed the death sentence on 13 March 2014. The Supreme Court of India upheld the conviction and sentence on 5 May 2017, noting the brutal nature of the crime. The review petition was dismissed by the Supreme Court on 9 July 2018. Finally, the curative petition was dismissed on 14 January 2020, leading to the filing of the mercy petition.

Legal Framework

The Supreme Court considered the following legal provisions:

• Article 72 of the Constitution of India: This article grants the President of India the power to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of any offense. This includes the power to commute a death sentence.
  
  “Article 72 of the Constitution, the President of India shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. As per Article 72(1)(c) of the Constitution, the power is inclusive of commutation in cases where the sentence is a sentence of death.”
• Article 161 of the Constitution of India: This article grants the Governor of a State similar powers to grant relief to persons convicted of offenses against state laws.
  
  “Under Article 161 of the Constitution, similar is the power of the Governor to give relief to any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”
• Section 30(2) of the Prisons Act: This provision relates to the custodial segregation of prisoners under a sentence of death.

The Court emphasized that the power under Articles 72 and 161 is a constitutional duty, not a matter of grace, and should be exercised in the aid of justice. The exercise of this power is subject to limited judicial review to ensure that constitutional authorities consider all relevant materials.

Arguments

The petitioner, Mukesh Kumar, argued that:

• Relevant materials, such as DNA reports, odontology reports, and other documents proving his innocence, were not placed before the President of India during the consideration of his mercy petition.
• The mercy petition was rejected swiftly, indicating a pre-determined stance and non-application of mind by the authorities.
• He was kept in solitary confinement for more than one and a half years, which led to severe psychiatric ailments.
• His sufferings in prison, including alleged beatings and sexual harassment, were not considered.
• The Superintendent of Tihar Jail did not provide a recommendation in his nominal roll, which is a crucial consideration for mercy.

The Union of India and the Government of NCT of Delhi, represented by the Solicitor General, argued that:

• All relevant materials, as laid down in Shatrughan Chauhan and another v. Union of India and others (2014) 3 SCC 1, were placed before the President of India.
• The petitioner was not kept in solitary confinement but in a single room with iron bars, open to air, and intermingled with other prisoners.
• Quick consideration of the mercy petition does not imply non-application of mind.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether relevant materials were not placed before the President of India and were kept out of consideration while considering the mercy petition.
2. Whether the mercy petition was rejected swiftly, indicating a pre-determined stance and non-application of mind.
3. Whether the solitary confinement of the petitioner for more than one and a half years led to severe psychiatric ailments.
4. Whether the non-consideration of relevant circumstances, such as the prisoner’s suffering in prison, and consideration of extraneous and irrelevant circumstances, was valid.
5. Whether there was non-observance of established rules and guidelines in considering the petitioner’s mercy petition.
6. Whether the absence of recommendation of the Superintendent, Tihar Jail in nominal roll is a ground for judicial review.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court dismissed the writ petition, upholding the President’s decision to reject the mercy petition. The Court found no merit in the petitioner’s arguments regarding non-placement of relevant materials, pre-determined stance, solitary confinement, or non-consideration of his sufferings in prison.

How each authority was viewed by the Court?

• Kehar Singh v. Union of India (1989) 1 SCC 204*: The Court referred to this case to reiterate that the power under Article 72 is independent of the judiciary.
• Ashok Kumar v. Union of India (1991) 3 SCC 498, Swaran Singh v. State of U.P. (1998) 4 SCC 75, Satpal v. State of Haryana (2000) 5 SCC 170*: The Court referred to these cases to support the principle that the power exercised under Article 72 is subject to limited judicial review.
• Bikas Chatterjee v. Union of India (2004) 7 SCC 634*: The Court referred to this case to reiterate the limited grounds for judicial review of orders under Article 72 and that the President is presumed to act carefully.
• Epuru Sudhakar and Another v. Govt. of A.P. and Others (2006) 8 SCC 161*: The Court referred to this case to highlight the grounds for judicial review of orders under Article 72/161 and the desirability of indicating reasons in the order.
• Narayan Dutt and others v. State of Punjab and another (2011) 4 SCC 353*: The Court referred to this case to reiterate the limited grounds for judicial review of orders under Article 72/161.
• Devender Pal Singh Bhullar v. State of (NCT of Delhi) (2013) 6 SCC 195*: The Court referred to this case to state that the disposal of mercy petitions requires consideration of various factors.
• Shatrughan Chauhan and another v. Union of India and others (2014) 3 SCC 1*: The Court heavily relied on this case for the guidelines regarding the consideration of mercy petitions, the materials to be placed before the President, and the concept of solitary confinement.
• Sunil Batra v. Delhi Administration and Others (1978) 4 SCC 494*: The Court referred to this case for the interpretation of solitary confinement under Section 30 of the Prisons Act.
• Maru Ram v. Union of India (1981) 1 SCC 107*: The Court referred to this case to highlight that the power under Article 72 is a high prerogative power and that the authority is presumed to act carefully.

What weighed in the mind of the Court?

The Court’s decision was primarily influenced by the following factors:

• The Court emphasized that the power under Article 72 is a constitutional duty, not an act of grace. It should be exercised with great care and circumspection.
• The Court found that all relevant materials, including judgments of the trial court, High Court, and Supreme Court, were placed before the President.
• The Court reiterated that the scope of judicial review of the President’s decision under Article 72 is very limited. The grounds for review are: (a) lack of application of mind, (b) mala fide intent, (c) extraneous considerations, (d) keeping relevant materials out of consideration, and (e) arbitrariness.
• The Court accepted the affidavit of the Director General, Prisons, that the petitioner was not in solitary confinement.
• The Court held that alleged sufferings in prison are not a ground for judicial review of the executive order passed under Article 72.
• The Court held that quick consideration of the mercy petition is not a ground for judicial review.
• The Court held that the recommendation of the Jail Superintendent is not mandatory.

The Court emphasized the limited scope of judicial review in matters of mercy petitions under Article 72 of the Constitution. The Court reiterated that the President is presumed to act carefully and objectively, considering all aspects of the matter.

The Court quoted:

“The power of pardon is essentially an executive action, which needs to be exercised in the aid of justice and not in defiance of it.”

“To be “under sentence of death” means “to be under a finally executable death sentence”.”

“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.”

Key Takeaways

• The President’s power to grant mercy under Article 72 is a constitutional duty, not a matter of grace.
• Judicial review of the President’s decision on mercy petitions is limited to specific grounds such as lack of application of mind, mala fide intent, or consideration of extraneous factors.
• Quick rejection of a mercy petition is not a valid ground for judicial review.
• The term “solitary confinement” has a specific legal meaning and does not apply to situations where a prisoner is kept in a single room with some level of interaction with other inmates.
• Sufferings in prison are not a ground for judicial review of the executive order passed under Article 72.
• The recommendation of the Jail Superintendent in the nominal roll is not mandatory for consideration of mercy petitions.

Directions

No specific directions were given by the Supreme Court in this judgment.

Development of Law

The ratio decidendi of this case is that the judicial review of the President’s decision on a mercy petition is very limited and can only be challenged on grounds such as lack of application of mind, mala fide intent, consideration of extraneous factors, or keeping relevant materials out of consideration. This decision reinforces the principles laid down in previous cases like Shatrughan Chauhan, and it does not change the previous positions of law.

Conclusion

In conclusion, the Supreme Court dismissed the writ petition filed by Mukesh Kumar, upholding the President’s decision to reject his mercy petition. The Court found that the President had considered all relevant materials and that the petitioner’s arguments lacked merit. The judgment reiterates the limited scope of judicial review in matters of mercy petitions and reinforces the constitutional duty of the President in such matters.