REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

WRIT PETITION (CRIMINAL) D NO.3334 OF 2020

MUKESH KUMAR                                           ...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-Mukesh Kumar - 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  following

grounds:-

(i) Relevant  materials  were  not  placed  before  the

President  of  India  and  they  were  kept  out  of

consideration while considering the mercy petition;

(ii) The mercy petition was rejected swiftly and there was

pre-determined stance and complete non-application

of mind in rejection of the mercy petition;

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(iii) Solitary confinement of the petitioner for more than

one and half  years due to which the petitioner has

developed severe psychiatric ailments;

(iv) Non-consideration  of  relevant  circumstances  like

prisoners’ suffering in the prison and consideration of

extraneous and irrelevant circumstances; and

(v) Non-observance of established rules and guidelines

in considering the petitioner’s mercy petition.

2. The  present  writ  petition  relates  to  rejection  of  petitioner’s

mercy petition by the President of India.  The petitioner is a death-

row convict in Nirbhaya’s case which relates to the gangrape of the

victim in the moving bus in Delhi on the night of 16.12.2012.  The

trial  court  convicted  the  petitioner  and  other  co-accused  by

judgment dated 13.09.2013.  The High Court confirmed the death

sentence by its judgment dated 13.03.2014 and the Supreme Court

confirmed  the  same  vide  judgment  dated  05.05.2017.   In  the

judgment dated 05.05.2017 in Mukesh and Another v. State (NCT of

Delhi)  and  Others  (2017)  6  SCC 1,  this  Court  after  referring  to

various judgments and by elaborate reasonings held that there were

no extenuating or mitigating circumstances. Likewise, the trial court

and the High Court have also recorded detailed reasonings that the

incident was brutal and falling within the category of “rarest of rare

cases”.  The review petition  was heard by the Supreme Court  in

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open  court  and  the  same  was  considered  and  dismissed  by

judgment dated 09.07.2018. In the writ petition, the petitioner has

enumerated dates and events right from day of petitioner’s arrest

i.e. 18.12.2012 from his village in connection with FIR No.413/2012

registered at Vasant Vihar P.S. till 14.01.2020 – the date on which

the Supreme Court dismissed the 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 of India under Article 72 of the Constitution of India and to

the Lieutenant Governor under Article 161 of the Constitution and

the  through  the  Superintendent,  Tihar  Jail  No.2.   The

Superintendent,  Tihar  Jail  No.2  forwarded  the  petitioner’s  mercy

petition  along  with  his  nominal  roll,  latest  medical  report  of  the

petitioner, trial court judgment and details of the punishment of the

petitioner  to  Officer  in  Charge  –  Legal,  Prison,  Tihar  Jail  for

processing of the petitioner’s mercy petition. The grievance of the

petitioner is that despite a provision for recommendation by the jail

superintendent  in  nominal  roll,  the Superintendent  (Prison),  Tihar

Jail  who had the opportunity to observe the petitioner on a daily

basis  is  the  person  who  is  best  placed  to  opine  whether  the

petitioner  has repented and reformed and is  eligible  for  grant  of

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pardon. According to the petitioner, his conduct in prison and his

capacity to reform, is a crucial consideration 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

Government has recommended the rejection of the mercy petition of

the petitioner and sent it to the Lieutenant Governor. The petitioner’s

mercy  petition  was  rejected  by  respondent  No.1  –  Lieutenant

Governor on 15.01.2020. On 16.01.2020, respondent No.2-NCT of

Delhi has recommended the rejection of petitioner’s mercy petition

and  the  same  was  forwarded  to  the  President  of  India.  The

petitioner’s mercy petition was rejected by the President of India on

17.01.2020. Pursuant to the rejection of petitioner’s mercy petition,

learned Sessions Judge on 17.01.2020 issued a fresh execution

warrant directing the petitioner to be executed on 01.02.2020.  

5. Since the petitioner did not possess any documents pertaining

to the consideration of his mercy petition, on 17.01.2020, petitioner

through  his  lawyer  moved  the  application  before  the

Superintendent,  Tihar  Jail,  Secretary  Home  Department,

Government  of  NCT  and  Secretary  Home  Department,  UOI

requesting for  all  documents pertaining to his  mercy petition.  On

20.01.2020,  petitioner  also  filed  RTI  application  before  the

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Superintendent,  Tihar  Jail,  Secretary  Home  Department,

Government  of  NCT  and  Secretary  Home  Department,  UOI

requesting  for  supply  of  all  documents  pertaining  to  his  mercy

petition. In response to the application moved through petitioner’s

lawyer  as  well  as  his  RTI  application  dated  20.01.2020,  the

Superintendent,  Tihar  Jail  provided  the  petitioner  with  the

documents  pertaining  to  the  petitioner’s  mercy  petition  between

20.01.2020 and 23.01.2020.

6. Ms. Anjana Prakash, learned Senior counsel for the petitioner

submitted  that  power  under  Article  72  of  the  Constitution  is  the

constitutional  duty  and  is  to  be  exercised  in  the  light  of  the

guidelines and with great care and circumspection. Placing reliance

upon Shatrughan Chauhan and another v. Union of India and others

(2014) 3 SCC 1, it was submitted that while forwarding the mercy

petition, all the relevant documents like case records, judgment of

the trial court, High Court and the Supreme Court should be placed

before the President of India an the Home Ministry is to send their

views within reasonable time.  Placing reliance upon communication

from the Superintendent, Tihar Jail dated 14.01.2020, the learned

Senior  counsel  submitted  that  as  laid  down  in  Shatrughan

Chauhan, the relevant materials had not been placed before the

President of India and the relevant materials had been kept out of

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consideration.  The learned Senior counsel inter alia submitted that

in  violation  of  the  principles  laid  down  in  Sunil  Batra  v.  Delhi

Administration and Others  (1978)  4  SCC 494,  the petitioner  had

been kept  in  solitary  confinement  and  this  aspect  has  not  been

taken  into  consideration.   It  was  further  contended  that  the

sufferings of the petitioner in the prison during the custody has not

been taken into consideration while considering his mercy petition.

7. Refuting the contention of  the petitioner,  Mr.  Tushar Mehta,

learned Solicitor General submitted that while forwarding the mercy

petition all the relevant materials as laid down in paras 23 and 24.2

of  Shatrughan Chauhan have been placed before the President of

India.   The  learned  Solicitor  General  submitted  that  all  the

guidelines laid down in  Shatrughan Chauhan and other judgments

have been substantially complied with.  Insofar as the averments of

solitary confinement, the learned Solicitor General submitted that as

per the affidavit of the Director General, Prisons, the petitioner was

only  kept  in  a  single  room  with  iron  bars  open  to  air  and  the

petitioner was intermingling with other prisoners as per rules and

the same cannot be equated to solitary confinement.  So far as the

averment as to quick rejection of  the mercy petition,  the learned

Solicitor  General  submitted  that  delay  in  disposal  of  the  mercy

petition may be a ground for consideration of the mercy petition;

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whereas quick consideration of the mercy petition and rejection of

the same cannot be a ground for judicial review of the order of the

President under Article 72 of the Constitution nor does it  suggest

that there was pre-determined mind and non-application of mind.

8. We have heard Ms. Anjana Prakash, learned Senior counsel

appearing for the petitioner and Mr. Tushar Mehta, learned Solicitor

General appearing for Union of India and Govt. of NCT of Delhi and

considered their  submission and perused the averments made in

the petition.

9. What is impugned in this writ petition is the rejection of petition

under Article 72 of the Constitution of India by the President of India

on  17.01.2020.  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 the various

grounds that the settled principles of consideration of mercy petition

have not been followed.  

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

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

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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. After referring to Kehar Singh v. Union of India (1989) 1 SCC

204 and other judgments, in  Shatrughan Chauhan and another v.

Union  of  India  and  others (2014)  3  SCC 1,  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

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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. The manner of exercise of the power under the said Articles is

a matter of discretion.  In  Shatrughan Chauhan in para (25), the

Supreme  Court  held  that  “the  manner  of  exercise  of  the  power

under  the  said  Articles  is  primarily  a  matter  of  discretion  and

ordinarily the courts would not interfere with the decision on merits.

However, the courts retain the limited power of judicial review to

ensure that  the constitutional  authorities consider all  the relevant

materials before arriving at a conclusion.”

13. 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 Shatrughan Chauhan,

it was held as under:-

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“22. …..  Accordingly,  there  is  no  dispute  as  to  the  settled  legal

proposition that the power exercised under Articles 72/161 could be the

subject-matter of limited judicial review. (Vide  Kehar Singh v. Union of

India (1989) 1 SCC 204,  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  and  Bikas  Chatterjee  v.  Union  of  India

(2004) 7 SCC 634.)”

14. The  grounds  for  judicial  review  of  rejection  petition  under

Article 72 of the Constitution of India by the President of India has

been laid down in  Satpal v. State of Haryana  (2000) 5 SCC 170

which has been referred to with approval by the Constitution Bench

in Bikas Chatterjee v. Union of India and Another (2004) 7 SCC 634

wherein it was held as under:-

“9. In  a  Division  Bench  decision  of  this  Court  in  Satpal v.  State  of

Haryana (2000) 5 SCC 170 these very grounds have been restated as:

(i) the Governor exercising the power under Article 161 himself without

being advised by the Government; or (ii) the Governor transgressing his

jurisdiction; or (iii) the Governor passing the order without application of

mind;  or  (iv)  the  Governor’s  decision  is  based  on  some  extraneous

consideration; or (v) mala fides. It  is on these grounds that the Court

may exercise its power of judicial review in relation to an order of the

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

of the Constitution, as the case may be.

10. In the case of Maru Ram v. Union of India, the Bench noted that the

power conferred by Article 72 is a high prerogative power vested by the

Constitution  in  the  highest  functionary  of  the  Union.  The Constitution

Bench has also held that while exercising the power of judicial review the

Court shall keep in mind that where a power is vested in a very high

authority, it must be presumed that the said authority would act properly

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and carefully after an objective consideration of all  the aspects of the

matter and further, the higher the power the more cautious would be its

exercise.”

15. Although the decision of the President of India under Article

72 of  the Constitution of  India is  open to  judicial  review but  the

grounds therefore are very limited, the Constitution Bench in Bikas

Chatterjee held as under:-

“8. Although the decision of the President of India on a petition under

Article 72 of the Constitution is open to judicial review but the grounds

therefor are very very limited. In the Constitution Bench decision in Maru

Ram v.  Union of India  (1981) 1 SCC 107 this Court has held that it is

only  a  case  of  no  consideration  or  consideration  based  on  wholly

irrelevant grounds or an irrational, discriminatory or mala fide decision of

the President of India which can 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  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

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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.”

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 exercise of

power of judicial review of the decision taken by the President of

India on mercy petition is very limited and the same can be subject

to challenge 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  wholly

irrelevant 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 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 the mercy petition:-

(i) non-sending of relevant materials and non-application of mind

and failure to consider relevant circumstances;

(ii) absence of recommendation of the Superintendent, Tihar Jail in

nominal roll;

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(iii) sufferings of the petitioner in the prison;

(iv) solitary confinement;

(v) the  petition  has  been  rejected  swiftly  without  application  of

mind.  

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

the President of India and relevant materials were kept out of

the 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

case and other judgments ought to have been placed before the

President  of  India.  Drawing  our  attention  to  the  communication

dated  14.01.2020 from the  Office  of  the  Superintendent,  Central

Jail, Tihar, it was submitted that only four documents as stated in

Annexure P/2 viz. (i)  Nominal Roll of Mukesh S/o Mange Lal; (ii)

Latest Medical Report; (iii) Trial Court Judgment; and (iv) Details of

Punishments are said to have been forwarded and all the relevant

materials  have  not  been  placed  before  the  President.  Learned

Senior  counsel  has  submitted  that  the  documents  like  (i)  DNA

Report exhibited by PW 45; (ii) Odontology Report; (iii) Complaint

under Section 154 Cr.P.C.; (iv) Case diary and charge sheet and

such  other  documents  which  would  prove  the  innocence  of  the

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petitioner  were  not  placed  before  the  President  and  thus  the

relevant  materials  were  kept  out  of  the  consideration  of  the

President of India.

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

placed before the President of  India and after  referring to  Epuru

Sudhakar  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 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

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.”

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21. The  documents  stated  in  Annexure  P/2  sent  by  the

Superintendent,  Central  Jail,  Tihar  for  consideration of  the mercy

petition filed by the petitioner were the documents sent to the Officer

In-Charge (Legal), Prison Headquarters, Tihar. The four documents

viz. (i) Nominal Roll of Mukesh S/o Mange Lal; (ii) Latest Medical

Report; (iii) Trial Court Judgment; and (iv) Details of Punishments in

Annexure P/2 were probably the only documents available with the

Superintendent or called for from the Superintendent, Central Jail,

Tihar. There is no merit in the contention that only the above four

documents were the materials placed before the President of India.  

22. In this regard, the Joint Secretary, Ministry of Home Affairs has

filed an affidavit stating that all the relevant documents as laid down

in Paras (23) and (24.2) of Shatrughan Chauhan case were placed

before the President and after detailed examination, the President

has rejected the mercy petition on 17.01.2020. To satisfy ourselves,

we have perused two files containing the communications of  the

Ministry of Home Affairs, NCT of Delhi and the office of Lieutenant

Governor  and  the  file  containing  the  note  put  up  before  the

President of India.  From the covering letter dated 15.01.2020 from

NCT of Delhi addressed to Deputy Secretary (Judicial), Ministry of

Home Affairs,  it  is  seen that  all  the relevant  documents viz.,  the

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judgment of the trial court, 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. 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.  There  is  no  merit  in  the  contention  that  the

relevant  materials  were  kept  out  of  the  consideration  of  the

President.

23. Insofar  as  the  documents  like  (i)  DNA Report  exhibited  by

PW 45; (ii)  Odontology Report;  (iii)  Complaint  under Section 154

Cr.P.C; (iv) Case diary and charge sheet and other documents like

Dying Declaration, etc. are concerned, they are the materials upon

which reliance has been placed upon by the petitioner to put forth

his defence. The defence of the petitioner and the above materials

were considered by the trial  court,  High Court  and the Supreme

Court  and  the  defence  to  put  forth  by  the  petitioner  has  been

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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.  

24. Absence of recommendation of the Superintendent, Tihar

Jail:-  The Superintendent, Central Jail, Tihar has sent the Nominal

Roll.  Column  No.23  of  the  Nominal  Roll  relates  to

“recommendations of the Jail  Superintendent,  if  any”. One of the

grounds  urged  by  the  petitioner  is  that  forwarding  of  the  mercy

petition without recommendation of the Superintendent of Jail which

is the essential requirement as per the guidelines.  According to the

petitioner,  the Superintendent  of  Jail  is  the right  person to make

recommendation as to the conduct of the petitioner in the jail and

about  his  repentance and that  the petitioner  has reformed.   The

learned counsel for  the petitioner contended that  Column No. 23

was left blank and thus, the guidelines had not been followed. It was

submitted that recommendation of the Superintendent, Central Jail,

Tihar ought to have been called for as he is the only person who

could have given his opinion that the prisoner’s conduct in prison is

good and whether the petitioner repented and whether it is a fit case

for consideration of mercy petition.  

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25. The nominal roll is sent by the Superintendent to give various

details  as  per  the  columns  contained  thereon.  Though  Column

No.23 relates to recommendations of the Jail Superintendent, it is

not  incumbent  upon  the  Jail  Superintendent  to  give  his

recommendations  as  the  column  contains  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 or

may not give his remarks/recommendations. That apart, as rightly

contended by the learned Solicitor  General,  considering the high

position of the President of India and the constitutional duty which

the  President  is  discharging,  it  may  not  be  appropriate  for  the

Superintendent to make the recommendation nor was it necessary

for the authorities to call for the opinion of the Jail Superintendent as

to the subsequent conduct of the prisoner while in prison unless the

situation warrants.

26. It is stated that the guidelines “Procedure Regarding Petitions

for Mercy in Death Sentence Cases” issued by the Ministry of Home

Affairs,  Government  of  India  have been mentioned and the said

seven point guidelines are called “Guidelines for Dealing with Mercy

Petitions”, read as under:-

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

deficiency).

(ii)  Has the appellate court express doubt on the reliability of

evidence but has nevertheless decided on conviction?

(iii) Is it alleged that fresh evidence is obtainable, mainly with a

view 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 High Court

judges necessitating reference to a third judge?

(vi) Was the evidence duly considered in fixing responsibility, if it

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 rejected the

petitioner’s  mercy  petition  without  any  application  of  mind  on

account of extraneous considerations which is wholly unsustainable

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

India and others (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 very high authority, it must be presumed that the said

authority would take into consideration all the aspects of the matter.

We find no reason to hold that the above guidelines were not kept in

view.

27. Learned  counsel  appearing  for  the  petitioner  has  inter  alia

submitted that  the petitioner has been in solitary confinement for

more than one and a half years and it is in gross violation of law laid

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down by the Supreme Court in  Sunil Batra v. Delhi Administration

and Others (1978) 4 SCC 494 and Shatrughan Chauhan.  

28. Observing that the custodial segregation specified in Section

30(2) of the Prisons Act is attracted, only after the mercy petition is

rejected by the President or the Governor and only then the person

is  “under  sentence  of  death”  attracting  custodial  segregation

specified  in  Section  30(2)  of  the  Prisons  Act,  in  Shatrughan

Chauhan, it was held as under:-

“90. It was, therefore, held in Sunil Batra v. Delhi Administration (1978) 4

SCC 494 that the solitary confinement,  even if  mollified and modified

marginally,  is  not  sanctioned  by  Section  30  of  the  Prisons  Act  for

prisoners “under sentence of death”. The crucial holding under Section

30(2)  is  that  a  person  is  not  “under  sentence  of  death”,  even if  the

Sessions Court has sentenced him to death subject to confirmation by

the High Court. He is not “under sentence of death” even if the High

Court  imposes,  by  confirmation  or  fresh  appellate  infliction,  death

penalty, so long as an appeal to the Supreme Court is likely to be or has

been  moved  or  is  pending.  Even  if  this  Court  has  awarded  capital

sentence, it was held that Section 30 does not cover him so long as his

petition for mercy to the Governor and/or to the President permitted by

the Constitution, has not been disposed of. Of course, once rejected by

the Governor and the President, and on further application, there is no

stay of execution by the authorities,  the person is under sentence of

death.  During  that  interregnum,  he  attracts  the  custodial  segregation

specified in Section 30(2), subject to the ameliorative meaning assigned

to the provision. To be “under sentence of death” means “to be under a

finally executable death sentence”.

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29. Though it  is  alleged that  the petitioner has been in solitary

confinement for 08 months and 09 days in violation of the principles

of the Sunil Batra, the same is refuted by the respondents.  In his

affidavit, Director General, Prisons has denied the averment that the

petitioner  was  kept  in  solitary  confinement.   It  is  stated  that  for

security  reasons,  the  petitioner  was  kept  in  one  ward  having

multiple single rooms and barracks and the said single room had

iron bars open to air and the same cannot be equated with solitary

confinement/single cell.  It is stated that the prisoner/petitioner who

was kept in the single room comes out and mixes up with the other

inmates in the prison on daily basis like other prisoners as per rules.

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 v. Delhi Administration and Others (1978) 4 SCC 494 cannot

be countenanced.  This cannot therefore be a ground for review of

the order rejecting the petitioner’s mercy petition.

30. Alleged sufferings in the prison:-  Taking us through the

mercy petition, learned Senior counsel for the petitioner submitted

that  in  the  mercy  petition,  the  petitioner  has  narrated  about  the

alleged sufferings  and  that  he  was beaten  up  in  the  prison  and

sexually harassed and was suffering everyday in the prison.  The

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petitioner  has  further  averred  that  his  brother  Ram  Singh  was

actually murdered though his death was projected as “suicide” and

that  due  to  death  of  his  brother,  the  petitioner  was  living  in

“perpetual  fear”.   The learned Senior  counsel contended that  the

averments made by the petitioner as to his sufferings in the prison

had  not  been  taken  into  consideration  while  rejecting  his  mercy

petition.

31. As  per  the settled legal  position held  in  Narayan Dutt  and

others v.  State of Punjab and another (2011) 4 SCC 353,  Epuru

Sudhakar and Another v. Govt. of A.P. and Others  (2006) 8 SCC

161 and Shatrughan Chauhan, the exercise of power under Article

72/161  of  the  Constitution  is  subject  to  challenge  only  on  the

grounds  indicated  thereon.   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.

32. Consideration  and quick  rejection  of  petitioner’s  Mercy

Petition- Not a ground for review:-  On behalf of the petitioner, it

was  contended  that  there  was  non-application  of  mind  and  the

entire matter proceeded with bias and pre-determined mind.  The

learned  Senior  counsel  for  the  petitioner  submitted  that  after

dismissal  of  the  curative  petition  on  14.01.2020,  the  petitioner

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submitted  the  mercy  petition  which  was  forwarded  by  the

Superintendent on the very same day and in less than 24 hours of

having received the  petitioner’s  mercy  petition,  the  Deputy  Chief

Minister, Govt. of NCT of Delhi announced that the government had

made the  recommendation  for  rejection  of  the petitioner’s  mercy

petition.  The learned Senior counsel for the petitioner contended

that  the  petitioner’s  mercy  petition  was  sent  to  the  Lieutenant

Governor at “lightening speed” and on 16.01.2020, the Delhi Govt.

recommended the rejection of petitioner’s mercy petition in less than

24 hours and forwarded it to the President of India and the same

was  rejected  by  the  President  on  17.01.2020.   It  was  therefore

submitted that there was non-application of mind in rejection of the

petitioner’s  mercy  petition  as  the  same  has  been  rejected  with

“lightening speed” and with pre-determined mind.

33. The petitioner filed the curative petition before the Supreme

Court on 08.01.2020 and the same was dismissed by the Supreme

Court on 14.01.2020. The petitioner filed mercy petition addressed

to the President of India under Article 72 of the Constitution of India

and  also  to  the  Lieutenant  Governor  under  Article  161  of  the

Constitution  of  India  on  14.01.2020.  The  Lieutenant  Governor

forwarded the same to the Ministry of Home Affairs on 15.01.2020

with the relevant records. The Ministry of Home Affairs forwarded

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the same to the President of India on 16.01.2020 with the relevant

records.  After  consideration  of  the  matter,  the President  of  India

rejected  the  petitioner’s  mercy  petition  on  17.01.2020  and  the

petitioner was informed about the rejection.  

34. As held by the Constitution Bench in Maru Ram and referred

to  Bikas Chatterjee,  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. As pointed out earlier,

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

that all the relevant materials were placed before the President of

India and upon consideration of the same, the mercy petition was

rejected.  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.  

35. As rightly contended by the learned Solicitor General, delay in

disposal of mercy petition may be a ground calling for judicial review

of the order passed under Article 72/161 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.   

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36. 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 petition is liable to be dismissed.  The writ

petition is dismissed accordingly.

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

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

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

New Delhi; January 29, 2020.

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