2020 Supreme(SC) 86

SUPREME COURT OF INDIA
R. BANUMATHI, ASHOK BHUSHAN, A.S. BOPANNA, JJ.
MUKESH KUMAR – Petitioner
VERSUS
UNION OF INDIA AND OTHERS – Respondents
WRIT PETITION (CRIMINAL) D NO. 3334 OF 2020
Decided On : 29-01-2020

IMPORTANT POINTS
(1) Although decision of President of India under Article 72 of Constitution of India is open to judicial review but grounds therefore are very limited.
(2) Quick consideration of mercy petition and swift rejection of same cannot be a ground for judicial review of order passed under Article 72/161 of Constitution.

Headnote:

(A) Constitution of India – Articles 72 and 161 – Mercy petition – Disposal of petitions filed under Articles 72 and 161 of Constitution requires consideration of various factors i.e. nature of crime, manner in which crime is committed and its impact on society and time consumed in this process cannot be characterised as delay – Executive orders under Articles 72 and 161 of Constitution should be subject to limited judicial review – Although decision of President of India under Article 72 of Constitution of India is open to judicial review but grounds therefore are very limited – Same can be subject to challenge only on grounds that order has been passed without application of mind; order is mala fide; order has been passed on extraneous or wholly irrelevant considerations; relevant materials have been kept out of consideration; and order suffers from arbitrariness. (Paras 10, 13, 15 and 17)

(B) Constitution of India – Article 72 – Nirbhaya rape and murder case – Death sentence – Rejection of mercy petition by President of India – All relevant documents viz., judgment of trial court, High Court and Supreme Court and legible and clean copy of records of case and details of review/curative petitions filed by petitioner and other co-accused along with present status and other details of petitioner like past criminal history, economic condition of family of petitioner and recommendation of Government of NCT of Delhi were all sent by NCT of Delhi along with mercy petition to be placed before President of India – All documents were taken into consideration and upon consideration of relevant records and facts and circumstances of surrounding crime, President has rejected mercy petition – There is no merit in the contention that relevant materials were kept out of consideration of President – It is not necessary that each and every material relied upon by petitioner-accused should have been placed before President – There is no merit in contention of petitioner that relevant materials were kept out of consideration of President – Contention of petitioner that he has been kept in solitary confinement cannot be a ground for review of order rejecting petitioner’s mercy petition – Alleged sufferings in prison cannot be a ground for judicial review of executive order passed under Article 72 of Constitution rejecting petitioner’s mercy petition – Where power is vested in a very high authority, it must be presumed that said authority would act carefully after an objective consideration of all aspects of matter – Note put up before President of India is a detailed one and all relevant materials were placed before President of India and upon consideration of same, mercy petition was rejected – Merely because there was quick consideration and rejection of petitioner’s mercy petition, it cannot be assumed that matter was proceeded with pre-determined mind – Delay in disposal of mercy petition may be a ground calling for judicial review of order passed under Article 72/161 of Constitution – But quick consideration of mercy petition and swift rejection of same cannot be a ground for judicial review of order passed under Article 72/161 of Constitution – Nor does it suggest that there was pre-determined mind and non-application of mind – Writ petition dismissed. (Paras 22, 23, 29, 31, 34, 35 and 36)

Facts of the case:

Instant writ petition has been filed under Article 32 of 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.

Findings of the Court:

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 quick consideration of the mercy petition and swift rejection of 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.