Can the swift and quick disposal of rejection of Mercy Petition be considered as a ground of Judicial Review, even in the most brutal cases

Falgu Mukati | Pravin Gandhi College of Law | 4th February 2020

Mukesh Kumar vs Union of India, Writ Petition (Criminal) D NO.3334 OF 2020 

Matter 

Nirbhaya, a 23-year-old, physiotherapy student, was gangraped by six men on 16^th December, 2012, in a bus in Delhi. The trial court conferred the petitioner and the other accused with death sentence by judgement dated 13/09/2013, thereafter the High Court of NCT of Delhi confirmed death sentence by the judgement dated 13/03/2014, the Supreme Court as well confirmed the death sentence by the judgement of 05/05/2017. The Supreme Court after referring to various judgements, examining the reports and evidences and the proceedings of Trial Court and High Court, came to the conclusion that the crime committed was a brutal one and that it was a ‘rarest of rare case.’ The petitioner, Mukesh Kumar, after appealing in the apex court, and receiving a judgement against him, filed for Mercy Petition to the President under Article 72 Constitution of India, and the Lieutenant Governor under Article 161 of the Constitution of India. However, the Mercy Petition was rejected by the President and the Lieutenant Governor. 

Appellant’s Contention

• It was alleged that the Mercy plea was rejected within 24 hours.
• It was stated that only four documents Nominal Roll of Mukesh, Latest Medical Report, Trial Court Judgement, Details of Punishment, were forwarded to the President along with the mercy plea. All the other relevant documents which were necessary such as DNA Report, Odontology Report, Complaint under Section 154 of Cr.P.C, Case Diary and Charge Sheet and others were not forwarded to the President while considering for the mercy plea. 
• The mercy was rejected on the grounds of biasness towards the petitioner. There was no application of mind in the rejection of the plea. 
• The petitioner was put in solitary confinement for more than one and a half year, as a result of which the petitioner had developed severe psychiatric ailments. 
• The rules and regulations which must be taken into consideration while deciding upon the mercy plea, were not abided by. 
• The Superintendent makes certain recommendations, i.e. gives his opinion as to whether the prisoner’s behaviour in prison is good or not, whether the case should be considered for mercy petition. However, it was alleged that the recommendation of the Superintendent of the Tihar Jail was not forwarded.
• It was alleged that the petitioner was beaten up in the prison and sexually harassed. 
• It was alleged that the brother of the petitioner Ram Singh who is also one of the accused was murdered, but it was portrayed as a suicide. 

Respondent’s Contention

• Mr Tushar Mehta the Solicitor General, stated, that all the relevant material was forwarded to the President and the Lieutenant Governor, along with the mercy plea.  
• It stated that the petitioner, Mukesh Kumar, was not kept in solitary confinement, but, in a single room with iron bars which allowed air in and that that the petitioner used to mingle with other prisoners. 
• The Solicitor submitted that there was no biasness on any grounds whatsoever by the President or the Lieutenant Governor, and that that there was no absence of application of mind while rejecting the mercy plea. 
• It submitted that Column no. 23 of the Nominal Roll states that, “recommendations of the Jail Superintendent, if any.” As such the Superintendent had no obligation upon him to send his recommendations to the President and the Governor. 
• It stated that the seven-point guidelines, the Guidelines for Dealing with Mercy Petition, were duly followed. 
•  The mere fact that the mercy petition was rejected in a short span of time was no ground for Judicial Review of the mercy petition. 

Issues Raised

• The main issue raised in this case was that whether swift and quick disposal of a Mercy Petition be considered as ground for Judicial Review. 
• The mere fact that accused had slipped into depression during the trial of court proceedings, be considered as a ground to reverse the judgement pronounced by three different courts, considering the brutality of the crime

Held

It was held that quick and swift disposal of a Mercy Petition cannot be considered as a ground for Judicial Review, and thus this petition of Judicial Review of the rejection of Mercy Petition, must be dismissed