IMPORTANT POINTS
(1) Alleged torture in prison cannot be a ground for judicial review of executive order passed under Article 72 of Constitution of India rejecting mercy petition.
(2) When power is vested in very high constitutional authority, it must be presumed that said authority had acted carefully after considering all aspects of matter.

ORDER :

1. In this writ petition filed under Article 32 of the Constitution of India, the petitioner Pawan Kumar Gupta has challenged rejection of mercy petition by His Excellency the President of India inter-alia on various grounds; that settled principles of consideration of mercy petition have not been followed. The contention of the petitioner is that the petitioner’s plea of juvenility has not been finally determined and this aspect was not kept in view by His Excellency the President of India.

2. By the order of Hon’ble the Chief Justice of India, this Bench has been constituted and we held the sitting at 2.30 a.m. on 20.03.2020.

3. We have heard Dr. A.P. Singh and Mr. Shams Khwaja, learned counsel appearing for the petitioner/convict Pawan Kumar Gupta. We have also heard Mr. Tushar Mehta, learned Solicitor General appearing for Union of India and also for NCT of Delhi. The matter was heard from 2.30 am till 3.15 a.m.

4. We have carefully gone through the grounds raised by the petitioner and also submissions of the learned counsel appearing for the parties and perused the materials on record.

5. The petitioner has filed a mercy petition on 02.03.2020 and same was rejected by His Excellency the President of India on 04.03.2020. The petitioner has filed the second mercy petition on 18.03.2020 repeating the same grounds.

6. In this writ petition, the petitioner has inter-alia raised various grounds, namely: (i) that there was miscarriage of justice in rejection of the mercy petition; (ii) the petitioner’s date of birth is 08.10.1996 and on the date of the incident that is 16.12.2012, he was only aged 16 years and that he was a juvenile and his claim of juvenility has not been finally determined and (iii) the petitioner has been tortured in the prison and had sustained head injuries for which he has not been given proper treatment.

7. The learned counsel for the petitioner Mr. Shams Khwaja has also raised the contention that the petitioner might not have shared common intention along with the other co-accused and therefore the petitioner cannot be imposed with the grave capital punishment with other co-convicts.

8. Mr. Shams Khwaja has also drawn our attention to the press report as per which His Excellency the President of India is said to have expressed concern about “attacks on women” and also said to have expressed his views that the persons who have been convicted of a crime under Protection of Children from Sexual Offences (POCSO) Act, should not be given the right to file a mercy petition. It was, therefore, submitted that having regard to the above press report, it cannot be said that His Excellency the President of India has considered the mercy petition with an open mind.

9. The learned Solicitor General has submitted that the clippings relied upon by the learned counsel for the petitioner is only a press report and in any event, the views expressed by His Excellency the President of India could only said to be on the line of the reforms insofar as POCSO is concerned.

10. The consistent view taken by this Court that the exercise of power of judicial review of the decision taken by His Excellency the President of India in mercy petition is very limited. In Epuru Sudhakar and Another vs. Govt. of A.P. and Others, (2006) 8 SCC 161, this Court held thus:

“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/rem