REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

WRIT PETITION (CRL.) NO.65 OF 2020

VINAY SHARMA                                ...Petitioner

VERSUS

UNION OF INDIA AND OTHERS                             ...Respondents

O R D E R

R. BANUMATHI, J.

This  writ  petition  has  been  filed  under  Article  32  of  the

Constitution of India by the petitioner-Vinay Sharma – a death-row

convict.  The  petitioner  has  filed  the  writ  petition  challenging  the

rejection  of  his  mercy  petition  by  the  President  of  India  and

seeking  commutation  of  his  death  sentence  inter  alia on  the

grounds:-  (i)  Non-furnishing  of  relevant  materials  under  RTI  Act;

(ii)  non-consideration of  relevant  material;  (iii)  torture;  (iv)  mental

illness;  (v)  consideration of  irrelevant  material  by  the respondent

authorities; and (vi) illegal solitary confinement.  

2. The petitioner is a death-row convict in Nirbhaya’s case which

relates to the gang rape of the victim in the moving bus in Delhi on

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the night  of  16/17.12.2012.  The trial  court  by its  judgment  dated

10.09.2013  convicted  the  petitioner  and  other  co-accused  in

SC  No.114  of  2013  under  Sections  120-B,  365,  366  read  with

Section 120-B IPC, 307 read with 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-B IPC, 201 read with Section 120-B

IPC and  412 IPC. The trial court imposed the death sentence on

the petitioner and other co-accused by the order dated 13.09.2013.

The High Court  by  its  judgment  dated 13.03.2014 confirmed the

conviction  of  the  petitioner  and  co-accused  and  also  the  death

sentence imposed upon them. For awarding death sentence, the

trial  court  and the High Court  have recorded detailed reasonings

that the incident was gruesome and falling within the category of

“rarest of rare cases”.   The Supreme Court by its judgment dated

05.05.2017 in  Mukesh and Another  v.  State  (NCT of  Delhi)  and

Others (2017) 6 SCC 1 confirmed the conviction and also the death

sentence and dismissed the appeal preferred by the petitioner and

other  co-accused.  After  referring  to  various  judgments  and  by

elaborate reasonings, the Supreme Court held that there were no

extenuating or  mitigating circumstances.  The review petition  was

heard at length by the Supreme Court in the open court and the

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same  was  considered  and  dismissed  by  the  order  dated

09.07.2018.  

3. On 07.01.2020, learned Sessions Court, Patiala House issued

an execution warrant to execute the petitioner on 22.01.2020. On

08.01.2020, petitioner filed a curative petition before the Supreme

Court and the same was dismissed on 14.01.2020. After rejection of

co-accused Mukesh’s mercy petition, Sessions Court issued a fresh

warrant  for  execution  directing  that  the  petitioner  and  the  co-

accused to be executed on 01.02.2020. On 10.01.2020, petitioner’s

counsel  sought  for  the  documents  from the  Superintendent  and

after  obtaining the documents,  the petitioner preferred the mercy

petition to the President of India on 29.01.2020. The President of

India rejected the mercy petition on 01.02.2020 and the same was

communicated to the petitioner in Tihar Central Jail on 01.02.2020.  

4. On  31.01.2020,  learned  Sessions  Judge  passed  an  order

postponing the execution of the death warrant. The criminal revision

petition filed by the Union of India has been disposed of by the High

Court by its order dated 05.02.2020.  Challenge in this writ petition

is the rejection of  mercy petition by the President of  India under

Article 72 of the Constitution on 01.02.2020.

Contentions:-

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5. Dr.  A.P.  Singh,  learned  counsel  appearing  on  behalf  of

petitioner  Vinay  Sharma  challenged  the  rejection  of  his  mercy

petition  by the President  of  India  contending that  the Lieutenant

Governor and Home Minister,  NCT of  Delhi  have not signed the

recommendation for rejection of the petitioner’s mercy plea.  It was

submitted that the relevant materials like the case records, correct

medical status report of the petitioner, Social Investigation Report

and the nominal  roll  of  the petitioner were not  placed before the

President  of  India  and  the  concerned  authorities  and  these

documents  were  kept  out  of  consideration  and  only  irrelevant

materials were placed before the President of India which according

to  the  learned  counsel,  vitiates  the  order  of  rejection  of  mercy

petition.  As  per  Dr.  A.P.  Singh,  he  approached  the  respondents

authorities  that  is  office  of  the  President  of  India,  Lieutenant

Governor, Ministry of Home Affairs and the Department of Home,

Govt. of NCT of Delhi under the Right to Information Act, 2005 and

filed  RTI  application  requesting  for  records  pertaining  to  the

rejection of the mercy petition of the petitioner; however, the same

have  not  been  furnished  to  nor  was  there  any  reply  to  his

application.  However, the learned counsel submitted that he was

permitted  to  peruse  the  relevant  file.  According  to  the  learned

counsel,  without  access  to  the  records,  the  petitioner  cannot

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exercise his right under Article 21 of the Constitution and he cannot

challenge the order rejecting his mercy petition.

6. It  is  the  further  argument  of  the  learned  counsel  for  the

petitioner that petitioner Vinay Sharma was only 19 years old and is

not a habitual offender and hails from lower class of society and

these  aspects  could  have  been  considered  only  by  a  thorough

Social  Investigation  Report  which  was  not  placed  before  the

President of India.   

7. The learned counsel submitted that the petitioner was kept in

solitary confinement even while his mercy petition was still pending

before  the  President  of  India  and  such  illegal  confinement  was

unfair  and in  violation of  Sunil  Batra  v.  Delhi  Administration and

Others  (1978)  4  SCC  494 and  this  becomes  a  ground  for

commutation  of  death  sentence.   It  was  further  urged  that  the

petitioner was tortured in the jail not only physically and there were

also  mental  tortures  and  on  number  of  days,  petitioner  Vinay

Sharma was sent to medical treatment and also for psychological

treatment.  It is the claim of the learned counsel that the petitioner

has  been  on  psychological  medication  and  diagnosed  with  the

adjustment  disorder  and  that  as  per  Delhi  Prisons  Rules,  the

petitioner  should  have  been  provided  with  proper  care  and

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treatment for mental illness and on the basis of the medical records.

It is the claim of the learned counsel that the prisoners with medical

illness and mental illness cannot be executed in terms of the UN

General  Assembly  Resolutions  as  referred  to  in  Shatrughan

Chauhan and Another v. Union of India and Others (2014) 3 SCC 1

and other Union Treaties.  

8. Countering  the  above  arguments,  Mr.  Tushar  Mehta,  the

learned  Solicitor  General  has  submitted  that  all  the  relevant

materials  were  placed  before  the  concerned  authorities  and  the

mercy petition was forwarded to the President of India along with all

those documents including the details of the court cases, records of

the  case,  medical  record,  Social  Investigation  Report.   It  was

submitted that the mercy petition along with the relevant documents

was received by the Ministry of Home Affairs who have perused and

with  the  appropriate  note  file,  thereafter  documents  were  placed

before the President of India with a detailed Note File.  Insofar as

the alleged medical illness/mental illness of the petitioner, learned

Solicitor General submitted that the petitioner was regularly checked

and the Medical Officer In-Charge, Central Jail Hospital has issued

the medical  report  stating that  the petitioner  was psychologically

well adjusted and his general condition is stable and the medical

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report  of  the  petitioner  has  been placed before  the  President  of

India.   Drawing our  attention to the affidavit  filed by the Director

General (Prisons), Tihar Jail, it was submitted that the petitioner was

never  placed in  solitary confinement  and was placed in  a single

room with iron bars and the petitioner intermittently mingled with

other  prisoners.  The learned Solicitor  General  submitted that  the

scope of  judicial  review of  the order  passed by the President  of

India  is  very  limited and the contentions  urged on behalf  of  the

petitioner would not fall within the grounds of review as laid down by

various judgments of this Court and prayed for dismissal of the writ

petition.

9. In this writ petition filed under Article 32 of the Constitution,

the petitioner challenges the order of rejection of his mercy petition

by  the  President  of  India  inter  alia on  various  grounds  that  the

settled principles of consideration of mercy petition have not been

followed and that the relevant materials were not placed before the

President of India.

10. As per 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

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72(1)(c) of the Constitution, the power is inclusive of commutation in

cases where the sentence is a sentence of death. 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.  The

disposal  of  the  petitions  filed  under  Articles  72  and  161  of  the

Constitution requires consideration of various factors i.e. the nature

of crime, the manner in which the crime is committed and its impact

on the society and that the time consumed in this process cannot be

characterised as delay. As held in  Devender Pal Singh Bhullar v.

State of (NCT of Delhi)  (2013) 6 SCC 195 that the disposal of the

mercy petitions filed under Articles 72 and 161 of the Constitution of

India requires consideration of various factors.   

11. The grounds for judicial review of rejection of mercy petition

under  Article  72  of  the  Constitution  has  been  considered  in

Satpal v. State of Haryana (2000) 5 SCC 170 and the Constitution

Bench judgment in  Bikas Chatterjee v. Union of India and Others

(2004)  7  SCC 634 and  Shatrughan Chauhan.   After  referring to

various decisions, the Supreme Court considered the power of the

President of India or the Governor of the State under Articles 72 and

161 of the Constitution and observing that the power vested in the

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President of India under Article 72 and the Governor under Article

161  of  the  Constitution  is  a  constitutional  duty,  in  Shatrughan

Chauhan, it was held as under:-

“14. Both Articles 72 and 161 repose the power of the People in the

highest dignitaries i.e. the President or the Governor of a State, as the

case may be, and there are no words of limitation indicated in either of

the two Articles. The President or the Governor, as the case may be, in

exercise of power under Articles 72/161 respectively, may examine the

evidence afresh and this exercise of power is clearly independent of the

judiciary. This Court, in numerous instances, clarified that the executive

is not sitting as a court of appeal, rather the power of President/Governor

to  grant  remission  of  sentence  is  an  act  of  grace  and  humanity  in

appropriate cases i.e. distinct, absolute and unfettered in its nature.”

…….

19. In concise, the power vested in the President under Article 72 and

the Governor  under  Article  161 of  the  Constitution  is  a  constitutional

duty. As a result, it is neither a matter of grace nor a matter of privilege

but is an important constitutional responsibility reposed by the People in

the highest authority. 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.  Further,  it  is  well  settled that  the power under  Articles

72/161 of the Constitution of India is to be exercised on the aid and

advice of the Council of Ministers.”

12. In a number of decisions, the Supreme Court has taken the

consistent view that the executive orders under Articles 72 and 161

of the Constitution should be subject to limited judicial review.  In

WP(Crl.) D No.3334 of 2020 - similar petition filed by co-accused

Mukesh Kumar,  we have referred to number of  judgments which

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have  elaborately  considered  the  scope  of  judicial  review  of  the

decision of the President of India on a petition under Article 72 of

the Constitution of  India.  It  is  not  necessary to refer  to  all  those

decisions referred to in WP(Crl.) D No.3334 of 2020. Suffice to refer

to  the  Epuru Sudhakar  and Another  v.  Govt.  of  A.P.  and Others

(2006) 8 SCC 161  and  Shatrughan Chauhan. In  Epuru  Sudhakar,

the Court has referred to the various grounds available for limited

judicial review under Article 72 of the Constitution, it  was held as

under:-

“34. The  position,  therefore,  is  undeniable  that  judicial  review  of  the

order of the President or the Governor under Article 72 or Article 161, as

the case may be, is available and their orders can be impugned 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  wholly

irrelevant 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  learned  amicus

curiae; one relating to the desirability of indicating reasons in the order

granting pardon/remission while the other was an equally more important

question  relating  to  power  to  withdraw  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  value  were  kept  out  of  consideration.  According  to  learned

amicus curiae, reasons are to be indicated, in the absence of which the

exercise of judicial review will be affected.”

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13. In  Shatrughan Chauhan,  the Supreme Court considered the

power of the President or the Governor of the State under Articles

72  and  161  of  the  Constitution  and  observing  that  it  is  a

constitutional duty, held as under:-  

“14. Both Articles 72 and 161 repose the power of the People in the

highest dignitaries i.e. the President or the Governor of a State, as

the case may be, and there are no words of limitation indicated in

either of the two Articles. The President or the Governor, as the case

may be, in exercise of power under Articles 72/161 respectively, may

examine the evidence afresh and this exercise of power is clearly

independent  of  the  judiciary.  This  Court,  in  numerous  instances,

clarified that the executive 8 is not sitting as a court of appeal, rather

the power of President/Governor to grant remission of sentence is an

act of grace and humanity in appropriate cases i.e. distinct, absolute

and unfettered in its nature.

…….  

19. In concise, the power vested in the President under Article 72 and

the Governor under Article 161 of the Constitution is a constitutional

duty.  As  a  result,  it  is  neither  a  matter  of  grace  nor  a  matter  of

privilege but is an important constitutional responsibility reposed by

the  People  in  the  highest  authority.  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. Further, it is well settled that

the power under Articles 72/161 of the Constitution of India is to be

exercised on the aid and advice of the Council of Ministers.”

14. In the light of the above principles, let us consider the present

writ petition and the grounds urged by the petitioner. The petitioner

has primarily raised the following grounds to challenge the order of

rejection of his mercy petition:-

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(i) non-furnishing  of  copy  of  records  pertaining  to  the rejection  of  the  mercy  petition  of  the  petitioner  under

Right to Information Act, 2005;

(ii) relevant materials were kept out of consideration;

(iii) torture  while  in  custody  and  consequential  illness  and

mental  illness  of  the  petitioner  and  non-placing  of

materials pertaining to health condition of the petitioner;  

(iv) illegal solitary confinement; and

(v) Bias order was passed with prejudiced mind.   

15. Re.  Contention:  Records  not  made  available  to  the

petitioner under RTI Act : Learned counsel for the petitioner while

seeking to put forth the contention would submit that he had made

an application  to  the  office  of  the  President  of  India,  Lieutenant

Governor, Ministry of Home Affairs and the Department of Home,

Govt.  of  NCT of  Delhi  under  the  Right  to  Information  Act,  2005

seeking  copies  of  certain  documents  from  the  file  which  were

relevant  in  the  context  of  consideration  of  the  mercy  petition.

However,  the  same has  not  been replied  to.  In  that  regard,  the

learned  counsel  contended  that  he  was permitted  to  peruse  the

records  and  since  the  copies  were  not  made  available,  he  be

permitted to peruse the original file and make his submissions in the

court. Insofar as the grievance raised by the learned counsel for the

petitioner that he had not been furnished copies under the Right to

Information Act, we do not find it appropriate to advert to that aspect

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of  the matter  since it  is  beyond the  scope of  consideration in  a

petition of the present nature.  

16. In the writ petition filed under Article 32 of the Constitution of

India seeking judicial review of the order of the President passed

under Article 72 of the Constitution, the scope is very limited and the

Court  is  called  upon  to  examine:-  (i)  where  the  order  has  been

passed without application of mind; (ii) where the order has been

passed on extraneous or wholly irrelevant considerations; (iii) that

relevant materials have been kept out of consideration; and (iv) the

order suffers from arbitrariness.  

17. Insofar as the contention by the learned counsel that the file

be made available to him, we are of the opinion that even such a

course would not be appropriate. During the course of hearing, we

have rejected the request of the learned counsel appearing for the

petitioner that he should be permitted to peruse the file and then

make the submission on behalf of the petitioner. In any event, we

have heard learned counsel for the petitioner exhaustively and the

contentions with regard to the alleged discrepancies which is said to

have been observed by the learned counsel in the manner in which

the  file  had  been  processed  and  has  been  taken  up  for

consideration.  Having  taken  note  of  such  contention,  this  Court

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thought it fit to look into the file to satisfy itself as to whether the

procedure  as  contemplated  has  been  followed.  Accordingly,  we

have adopted that course. In that regard, from the file the learned

Solicitor General has referred to the various documents/enclosures

forwarded  along  with  the  mercy  petition,  nature  of  consideration

made  from  the  stage  of  receipt  of  the  mercy  petition  and  an

appropriate  note  put  at  various  stages  was referred  and  the  file

relating  to  the  same  was  made  available  to  the  Court.  The

consideration made by us is based on the contents of the file. In any

event,  as  already  indicated  above,  the  issue  with  regard  to  the

nature of documents required not being provided under the Right to

Information  Act  would  not  arise,  keeping  in  view  the  definite

parameters  under  which  the  petition  of  the  present  nature  is

required to be considered. Further, since this Court has examined

the file as indicated above, 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  and

Home Minister, Govt. of NCT of Delhi did not sign the relevant

file:-  Learned  counsel  for  the  petitioner  submitted  that  he  was

permitted to inspect the file and on such inspection, he has noticed

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that the Lieutenant Governor and Minister (Home), NCT of Delhi did

not peruse the file and on the other hand, upon the message sent

by an official, they have recommended the rejection of the mercy

petition.   It  was  further  submitted  that  on  inspection  of  file,  the

learned counsel learnt that the relevant file has not been signed by

the Minister  (Home),  NCT of  Delhi  and the Lieutenant  Governor,

Delhi.  Upon perusal of the file relating to the mercy petition of the

petitioner,  it  is  seen that  the Minister  (Home),  NCT of  Delhi  and

Lieutenant Governor, Delhi has perused the relevant file and have

signed the note to reject the mercy petition.  We do not find any

merit in the contention that there was non-application of mind on the

part of the Minister (Home), NCT of Delhi and Lieutenant Governor,

Delhi.

19. Re. Contention – Non-placing of relevant materials before

the President of India and the relevant materials were kept out

of consideration:-  Placing reliance upon  Shatrughan Chauhan,  it

was submitted that the power to commute a death sentence is not

an act of grace but a constitutional responsibility of the President of

India or Governor of a State. It was submitted that all the relevant

documents  and  materials  as  laid  down  in  Shatrughan  Chauhan

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case and other judgments were not placed before the President of

India.

20. To  satisfy  ourselves,  we  have  asked  the  learned  Solicitor

General to produce the files containing the file relating to Govt. of

NCT of Delhi and the office of Lieutenant Governor, Delhi and the

file relating to forwarding of the mercy petition of the petitioner from

Govt. of NCT of Delhi to Ministry of Home Affairs and file containing

the note put up before the President of India.  Accordingly, three

files  pertaining  to  the  petitioner  have  been  produced  before  us

which we have perused.  Petitioner Vinay Sharma had earlier filed a

mercy petition which was received by the President Secretariat on

04.10.2019.  That mercy petition was forwarded by Govt. of NCT of

Delhi along with enclosures as stated in the covering letter dated

02.12.2019. The learned Solicitor General submitted that the said

mercy  petition  was  specifically  withdrawn  and  the  petitioner  had

filed another mercy petition on 29.01.2020.  The said mercy petition

was forwarded from the Govt. of NCT of Delhi to Ministry of Home

Affairs  on  30.01.2020  along  with  the  enclosures  stated  in  the

covering letter dated 30.01.2020.  It is seen from the covering letter

that various documents were placed before the President of India

viz.                       (i) Recommendation of the Govt. of NCT of Delhi

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in regard to grant of clemency to the petitioner; (ii) Legible and clean

copy  each  of  the  judgment  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;  (vi)  Details  of  the

review/curative petitions pending in the Court filed by the accused

and other co-accused of the case, if any, along with present status;

(vii) The past criminal history of the prisoner, if any; (viii) Economical

condition of the family of the prisoner; and (ix) Any other documents

related to the case (Order for execution on 01.02.2020).

21. Before placing the note file before the President of India, the

Ministry of Home Affairs had placed the matter before the Hon’ble

Union Minister, Ministry of Home Affairs who applied his mind and

by  a  speaking  order,  recommended  for  rejection  of  the  mercy

petition.  By perusing the note put up before the President of India,

we have seen that  all  the documents enclosed along with mercy

petition of the petitioner and the submissions made by him in the

mercy petition were taken into consideration. Upon perusal of the

Note and  the records,  the President  of  India  rejected  the mercy

petition of the petitioner. Taking note of the documents forwarded

along with the mercy petition and the note put up by the Ministry of

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Home Affairs before the President of India, the mercy petition was

rejected.  We  find  no  merit  in  the  contention  that  the  relevant

materials were kept out of consideration of the President of India.

22. Non-placing of relevant materials – medical status report

and the status report as per the mental health of the petitioner:-

The learned counsel  for  the petitioner  had taken us through the

averments  in  the  petition  and  submitted  that  torture,  cruelty  and

inhuman treatment of 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  of  times,  he  was  taken  to  Central  Jail

Hospital and the petitioner was given treatment repeatedly for those

complaints.  It  was  contended  that  due  to  inhuman  torture  and

degrading  treatment  suffered  by  the  petitioner  during  his

incarceration,  the petitioner  developed mental  illness and caused

self-harm to himself on several occasions. It was submitted that the

medical record, mental illness and the status report on the mental

health  of  the  petitioner  were  not  placed  before  the  President  of

India. It was contended that in the mercy petition, the petitioner has

narrated that  the petitioner  did not  receive adequate health  care

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which would have caused his mental illness and such mental illness

and  procedural  lapses  infringe  the  rights  of  the  petitioner  and

entitling him for  commutation.   It  was submitted that  the medical

status report, Social Investigation Report and various other relevant

documents were not placed before the President of India and thus,

the  relevant  materials  were  kept  out  of  consideration  of  the

President of India.  

23. Considering the question as to the relevant documents to be

placed before the President  of  India and after  referring to  Epuru

Sudhakar,  in  Shatrughan  Chauhan, the  Supreme  Court  held  as

under:-

“24.2. ……. in  Epuru Sudhakar  v. State of A.P.  (2006) 8 SCC 161, this

Court held thus:  

……..

35. Two important aspects were also highlighted by learned amicus

curiae; one relating to the desirability of indicating reasons in the

order  granting  pardon/remission  while  the  other  was  an  equally

more important question relating to power to withdraw 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  value  were  kept  out  of  consideration.

According to learned amicus curiae, reasons are to be indicated, in

the absence of which the exercise of judicial review will be affected.

103.  ……. For illustration, on receipt of mercy petition, the Department

concerned has to call  for all  the records/materials connected with the

conviction.  Calling  for  piecemeal  records  instead  of  all  the  materials

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connected with the conviction should be deprecated. When the matter is

placed before the President,  it  is incumbent on the part  of the Home

Ministry to place all  the materials such as judgment of the trial  court,

High Court and the final court viz. Supreme Court as well as any other

relevant material connected with the conviction at once and not call for

the documents in piecemeal.”

24. By perusal of the file produced before us, it is seen that the

medical  report  of  the petitioner  along with  the treatment  and his

latest  medical  report  dated  30.01.2020  was  placed  before  the

concerned  authorities  which  in  turn,  was  placed  before  the

President. As seen from the enclosures in the forwarding letter of

the mercy petition dated 30.01.2020,  latest  medical  status report

dated  30.01.2020  issued  by  Dr.  Akash  Narade,  Senior  Medical

Officer and other  medical  reports and the treatment  given to the

petitioner, have been placed before the competent authority which

in turn,  were forwarded to the President  of  India.  In  the medical

status report, Dr. Akash Narade has referred to the details of the

treatment  of  the  petitioner  and  certified  that  the  petitioner  is

psychologically  well  adjusted  and  he  was  being  provided  with

regular therapy sessions by specialized therapists and the general

condition  of  the  petitioner  is  stable.  There  is  no  merit  in  the

contention that  the medical  report  of  the petitioner  has not  been

placed before the President.

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25. The alleged suffering of the petitioner in the prison cannot be

a ground for  judicial  review of  the executive order passed under

Article  72 of  the Constitution of  India rejecting petitioner’s  mercy

petition. As per the settled legal position in Narayan Dutt and Others

vs.  State  of  Punjab  and  Another  (2011)  4  SCC 353  and  Epuru

Sudhakar,  exercise  of  power  under  Articles  72  and  161  of  the

Constitution of  India is  subject  to  challenge only on the grounds

indicated thereon. When the highest constitutional authority,  upon

perusal of the Note and the various documents placed along with

mercy petition, has taken a decision to reject the mercy petition, it

cannot be contended that  the highest constitutional authority had

not applied its mind to the documents.  

26. Learned  counsel  for  the  petitioner  then  urged  that  the

petitioner comes from poor economic and social background and

the Social Investigation Report of the mercy petition has not been

forwarded along with the mercy petition. This contention again has

no force. As seen from the list  of enclosures sent along with the

mercy petition, it is seen that the economic condition of the family of

the petitioner and his Family Economic Status have been enclosed

as enclosure “H”. It is to be pointed out that the petitioner had earlier

filed a mercy petition in October, 2019 and said mercy petition was

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forwarded along with enclosures from the NCT of Delhi to Ministry

of  Home Affairs on 02.12.2019. While forwarding the said mercy

petition,  Social  Investigation  Report  containing  the  economic

conditions  of  the  family  of  the  petitioner  was  enclosed  as

enclosures. While forwarding the mercy petition dated 30.01.2020,

the said  Social  Investigation Report  dated 30.11.2019 containing

family  background  of  the  petitioner  and  economic  status  of  the

family and other details were again forwarded. There is no merit in

the contention that the Social Investigation Report was not placed

before the President  for  consideration and the relevant  materials

were kept out of consideration of the President.

Solitary Confinement:-

27. Learned counsel appearing for the petitioner argued that the

petitioner was illegally segregated and put in solitary confinement

prior to rejection of his mercy petition in violation of law laid down in

Sunil Batra. In the said case, it was held by the Supreme Court that

“a person is under sentence of death” only after the mercy petition is

rejected by the Governor and the President of India and on further

application,  there is  no stay of  execution by the authorities.  It  is

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therefore contended that  solitary confinement prior  to rejection of

mercy petition by the President of India is unconstitutional.

28. According  to  the  petitioner,  he  has  been  kept  in  solitary

confinement for a period of one year. This contention is however

refuted by the respondents.  In the affidavit dated 13.02.2020 filed

by  the Director  General  (Prisons),  Tihar  Jail,  it  is  stated that  for

security  reasons,  the  petitioner  was  placed  in  one  ward  having

multiple single rooms and barracks.  It is further stated that during

that limited period, the petitioner was kept in one of the single rooms

and  during  such  duration,  whenever  all  prisoners  came out,  the

petitioner-convict was also coming out.  It is stated that the single

room where the petitioner was placed had iron bars open to air and

the  same  cannot  be  equated  with  solitary  confinement  as  the

petitioner was permitted to come out and mingle with other inmates

at regular intervals on daily basis like other prisoners. Further, it has

been submitted that  such placement  of  the petitioner  in  a single

room  was  for  limited  duration  and  intermittent  period  either  for

security reasons or other reasons in the interest of convict.   It  is

clear from the affidavit filed by the Director General (Prisons) that

the petitioner was not kept in solitary confinement; rather he was

kept in protective custody which was for the benefit of the petitioner

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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  solitary  confinement  in

violation of the principles of Sunil Batra, does not merit acceptance

and this cannot be a ground for review of the order rejecting the

mercy petition of the petitioner.  

29. Bias  Order  was  passed  on  irrelevant  considerations:-.

Another ground argued by the learned counsel for the petitioner is

the alleged bias caused to the case of the petitioner because of the

statements made by the Ministers in the Delhi Government as well

as  in  the  Union  Government  which  have  led  to  pre-judging  the

outcome of the petitioner’s mercy petition even before it was placed

before the President of India for consideration. The petitioner has

referred  to  the  various  statements  made by the Ministers  to  the

effect  that  the  death  sentence  be  awarded  to  the  convicts  to

contend that such public statements had the effect of influence “aid

and advice”  tendered by the Council  of  Ministers of  Delhi  to the

Lieutenant  Governor  or  by  Council  of  Ministers  in  the  Central

Government to the President and the order of rejection is vitiated by

bias.  As discussed earlier,  note put  up before the President is a

detailed one and all the relevant materials were placed before the

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President and upon consideration of the same, the mercy petition

was rejected. The public statements said to have been made by the

Ministers,  cannot  be  said  to  have  any  bearing  on  the  “aid  and

advice”  tendered  by  the  Council  of  Ministers  of  Delhi  to  the

Lieutenant  Governor  or  by  Council  of  Ministers  in  the  Central

Government to the President.

30. The petitioner filed curative petition before the Supreme Court

and the same was dismissed on 14.01.2020.  The petitioner filed

mercy petition on 29.01.2020 and the same was forwarded by NCT

of  Delhi  to  the  Ministry  of  Home  Affairs  on  30.01.2020.  The

President of India rejected the mercy petition on 01.02.2020 and the

same was communicated to the petitioner in Tihar Central Jail on

01.02.2020. As pointed out earlier, the case records, judgments of

the trial court, High Court and the Supreme Court, clean copy of

records of the case, Nominal Roll of the petitioner, medical report of

the  petitioner,  Social  Investigation  Report  and  other  relevant

documents were forwarded to the Ministry of Home Affairs. The note

put up before the President of India is a detailed one and all the

relevant  materials  were  placed  before  the  President  and  upon

consideration of same, the mercy petition was rejected.  

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31. As held by the Constitution Bench in  Maru Ram v. Union of

India  and  Others (1981)  1  SCC  107 and  referred  to  Bikas

Chatterjee  (2004) 7 SCC 634,  the Court  shall  keep in  mind that

where  the  power  is  vested  in  a  very  high  authority,  it  must  be

presumed  that  the  said  authority  would  act  carefully  after  an

objective consideration of all the aspects of the matter.  

32. In the result, we do not find any ground for exercise of judicial

review of the order of the President of India rejecting the petitioner’s

mercy petition and this writ petition is liable to be dismissed. The

writ petition is dismissed accordingly.

….……………………..J.                                                                         [R. BANUMATHI]

.………………………..J.                                                                     [ASHOK BHUSHAN]

….……………………..J.                                                                  [A.S. BOPANNA]

New Delhi; February 14, 2020.

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