MUKESH KUMAR versus UNION OF INDIA AND OTHERS

Citation: [2020] 1 S.C.R. 761 · Decided: 29-01-2020 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Dismissed
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Judgment (excerpt)

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MUKESH KUMAR
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Criminal) 40 of 2020)
JANUARY 29, 2020
[R. BANUMATHI, ASHOK BHUSHAN
AND A.S. BOPANNA, JJ.]
Constitution of India – Arts. 32, 72 and 161 – Rejection of
mercy petition filed by a death-row convict – Judicial review of –
Petitioner was convicted in Nirbhaya’s case which relates to the
gang rape of the victim – The Trial Court recorded the incident
within the category of ‘rarest of rare cases’ and sentenced the
petitioner to death – The High Court and the Supreme Court
confirmed the death sentence – The petitioner, after exhausting all
his remedies filed mercy petition on 14.01.2020 addressed to the
President of India u/Art. 72 and Lieutenant Governor u/Art. 161 of
the Constitution through the Superintendent, Tihar Jail – The
Petitioner’s mercy petition was rejected by respondent no.1-
Lieutenant Governor on 15.01.2020 and by the President of India
on 17.01.2020 – Writ Petition by the petitioner before the Supreme
Court – The petitioner sought commutation of his death sentence
inter alia on the 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) There was a pre-determined
stance and complete non-application of mind in rejection of the
mercy petition; (iii) the petitioner was under solitary confinement
for more than one and half years; (iv) Non-consideration of relevant
circumstances likes prisoners’ suffering in the Prison; (v) Non-
observance of established rules and guidelines in considering the
petitioner’s mercy petition – Held: The Supreme Court has taken
the consistent view that the executive orders u/Arts. 72 and 161 of
the constitution should be subject to limited Judicial review–The
two files containing communications of the Ministry of Home Affairs,
NCT of Delhi and the office of Lieutenant Governor and file
containing the note put up before the President of India were perused
– It was found that all the relevant documents viz. the judgment of
   [2020] 1 S.C.R. 761
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SUPREME COURT REPORTS
[2020] 1 S.C.R.
the Trial Court, High Court and the Supreme Court, records of the
case, details of the review/curative petitions and other details of
the petitioner like past criminal history etc., the recommendation of
the Government of NCT of Delhi were all sent and placed before
the President of India along with mercy petition – Thus, there is no
merit in the contention that the relevant materials were kept out of
the consideration of the President – Further, it must be presumed
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 – The quick rejection
petitioner’s mercy petition is not a ground for review nor does it
suggest that there was pre-determined and non-application of mind
– Insofar as alleged sufferings of the petitioner in the prison is
concerned, as per the settled legal position held in Narayan Dutt
and others v. State of Punjab and another, Epuru Sudhakar and
Another v. Govt. of A.P. & Ors. and Shatrughan Chauhan and
another v. Union of India and others, the exercise of power u/Art.
72/161 of the Constitution is subject to challenge only on the grounds
indicated thereon – The alleged sufferings in prison cannot be a
ground for judicial review of the executive order passed u/Art. 72
of the Constitution rejecting the petitioner’s mercy petition –
Resultantly, there were no grounds for exercise of judicial review of
the order of the President of India rejecting the petitioner’s mercy
petition.
Shatrughan Chauhan and another v. Union of India
and others (2014) 3 SCC 1 : [ 2014] 1 SCR 609 (6);
Bikas Chatterjee v. Union of India and Another (2004)
7 SCC 634 (14); Epuru Sudhakar and Another v. Govt.
of A.P. and Others (2006) 8 SCC 161 : [2006] 7 Suppl.
SCR 81 (16) – relied on.
Mukesh and Another v. State (NCT of Delhi) and Others
(2017) 6 SCC 1 : [2017] 6 SCR 1 (2); Sunil Batra v.
Delhi Administration and Others (1978) 4 SCC 494 :
[1979] 1 SCR 392 (6); Devender Pal Singh Bhullar v.
State of (NCT of Delhi) (2013) 6 SCC 195 : [2013] 6
SCR 676 (10); Kehar Singh v. Union of India (1989) 1
SCC 204 : [1988] 3 Suppl. SCR 1102 (11); Satpal v.
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State of Haryana (2000) 5 SCC 170 : [2000] 3 SCR
858 (14); Narayan Dutt and others v. State of Punjab
and another (2011) 4 SCC 353 : [2011] 4 SCR
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