IMPORTANT POINTS
(1) Executive orders under Articles 72 and 161 of Constitution should be subject to limited judicial review.
(2) 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.
(3) Alleged suffering of petitioner in prison cannot be a ground for judicial review of executive order passed under Article 72 of Constitution of India rejecting petitioner’s mercy petition.

ORDER

R. BANUMATHI, J.

This writ petition has been filed under Article 32 of the Constitution of India by the petitioner-Vinay Sharma – 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 grounds:-

(i) Non-furnishing of relevant materials under RTI Act;

(ii) non-consideration of relevant material; (iii) torture; (iv) mental illness; (v) consideration of irrelevant material by the respondent authorities; and (vi) illegal solitary confinement.

2. The petitioner is a death-row convict in Nirbhaya’s case which relates to the gang rape of the victim in the moving bus in Delhi on the night of 16/17.12.2012. The trial court by its judgment dated 10.09.2013 convicted the petitioner and other co-accused in SC No.114 of 2013 under Sections 120-B, 365, 366 read with Section 120-B IPC, 307 read with Section 120-B IPC, 376(2)(g), 377 read with Section 120-B IPC, 302 read with Section 120-B IPC, 395, 397 read with Section 120-B IPC, 201 read with Section 120-B IPC and 412 IPC. The trial court imposed the death sentence on the petitioner and other co-accused by the order dated 13.09.2013. The High Court by its judgment dated 13.03.2014 confirmed the conviction of the petitioner and co-accused and also the death sentence imposed upon them. For awarding death sentence, the trial court and the High Court have recorded detailed reasonings that the incident was gruesome and falling within the category of “rarest of rare cases”. The Supreme Court by its judgment dated 05.05.2017 in Mukesh and Another v. State (NCT of Delhi) and Others (2017) 6 SCC 1 confirmed the conviction and also the death sentence and dismissed the appeal preferred by the petitioner and other co-accused. After referring to various judgments and by elaborate reasonings, the Supreme Court held that there were no extenuating or mitigating circumstances. The review petition was heard at length by the Supreme Court in the open court and the same was considered and dismissed by the order dated 09.07.2018.

3. On 07.01.2020, learned Sessions Court, Patiala House issued an execution warrant to execute the petitioner on 22.01.2020. On 08.01.2020, petitioner filed a curative petition before the Supreme Court and the same was dismissed on 14.01.2020. After rejection of co-accused Mukesh’s mercy petition, Sessions Court issued a fresh warrant for execution directing that the petitioner and the co- accused to be executed on 01.02.2020. On 10.01.2020, petitioner’s counsel sought for the documents from the Superintendent and after obtaining the documents, the petitioner preferred the mercy petition to the President of India on 29.01.2020. The President of India rejected the mercy petition on 01.02.2020 and the same was communicated to the petitioner in Tihar Central Jail on 01.02.2020.

4. On 31.01.2020, learned Sessions Judge passed an order postponing the execution of the death warrant. The criminal revision petition filed by the Union of India has been disposed of by the High Court by its order dated 05.02.2020. Challenge in this writ petition is the rejection of mercy petition by the President of India under Article 72 of the Constitution on 01.02.2020.

Contentions:-

5. Dr. A.P. Singh, learned counsel appearing on behalf of petitioner Vinay Sharma challenged the rejection of his mercy petition by the President of India contending that the Lieutenant Governor and Home Minister, NCT of Delhi have not signed the recommendation for rejection of the petitioner’s mercy plea. It was submitted that the relevant materials like the case records, correct medical status report of the petitioner, Social Investigation Report and the nominal roll of the petitioner were not placed before the President of India and the concerned authorities and these documents were kept out of consideration and only irrelevant materials were placed before the President of India whi