The Supreme Court on Wednesday dismissed Nirbhaya case convict Mukesh Kumar Singh's petition challenging the rejection of his mercy plea and said its "quick consideration" does not suggest non-application of mind by the president.
With a three-judge bench headed by Justice R Banumathi turning down his plea, it's the end of the legal road for Mukesh, one of the four men on death row in the 2012 gangrape and murder case of a physiotherapy intern in Delhi scheduled to be executed at 6 am on February 1.
However, the other three -- Pawan Gupta, Vinay Kumar Sharma and Akshay Kumar -- still have avenues left. Convicts have the option of moving a mercy petition before the president only after the apex court dismisses their curative plea.
On Wednesday, Akshay moved the top court with a curative petition, the last recourse in a court of law. The apex court has already rejected the curative petition of Vinay and the fourth convict, Pawan, is yet to file a curative plea.
The trial court has issued black warrants for their execution on February 1, three days away, but it is unlikely it will be carried through.
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According to apex court guidelines, convicts cannot be hanged until 14 days after their mercy plea has been rejected. Moreover, Delhi Prison Rules, 2018, stipulate that all prisoners convicted in the same case have to be executed together.
Hearing Mukesh's plea, the apex court held that President Ram Nath Kovind took into consideration all documents, including the verdicts delivered in the case by the courts, past criminal history of convict, economic condition of his family, while rejecting the mercy petition.
The bench, also comprising Justices Ashok Bhushan and A S Bopanna, said alleged sufferings in jail cannot be a ground to seek judicial review of the executive order passed under Article 72 of the Constitution, which deals with the power of the president to grant pardons and to suspend, remit or commute sentences in certain cases.
"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 (Mukesh) mercy petition and this petition is liable to be dismissed," the bench said in its 25-page order.
It observed that documents, including DNA and odontology reports, dying declaration, case diary and charge sheet of the case were already considered by the trial court, high court as well as the apex court. The defence put forth by Mukesh was already rejected.
"It is not necessary that each and every material relied upon by the petitioner-accused should have been placed before the president. There is no merit in the contention of the petitioner that relevant materials were kept out of the consideration of the president," the bench said.
It did not accept the contentions of Mukesh's counsel that he was allegedly kept in solitary confinement for over eight months.
The apex court referred to an affidavit filed by Director General (Prisons) which said he was kept in a separate room with iron bars open to air for security reasons and this cannot be equated with solitary confinement.
"This cannot therefore be a ground for review of the order rejecting the petitioner's mercy petition," the bench said.
Dealing with arguments of the convict's counsel that the mercy plea was rejected with "lightning speed", the bench said, "As held by the constitution bench..., 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.
"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."
The apex court agreed with Solicitor General Tushar Mehta's contentions that a delay in disposal of a mercy petition might be a ground for seeking judicial review of the order passed under Article 72 of the Constitution.
"But 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 of the Constitution. Nor does it suggest that there was pre-determined mind and non-application of mind," the bench noted.
It said that exercise of the power under Articles 72 and 161 (power of the Governor to grant pardons and to suspend, remit or commute sentences in certain cases) is a matter of "discretion" and the apex court has taken the consistent view that executive orders under these Articles "should be subject to limited judicial review".
The court also went through two files with communications from the Home ministry, the Delhi government and the office of Delhi's Lieutenant Governor as well as the file containing the note put up before the president.
"By perusal of the note, we have seen that all the documents were taken into consideration and upon consideration of the relevant records and the facts and circumstances of the surrounding crime, the president has rejected the mercy petition," it said.
Mukesh had also alleged he was tortured and sexually abused in the prison.
The 23-year-old woman, who came to be known as 'Nirbhaya', the fearless one, was gangraped and savagely assaulted on the night of December 16, 2012, in a moving bus in south Delhi. She died of her injuries a fortnight later in a Singapore hospital.
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