VINAY SHARMA v. UNION OF INDIA & ORS. 

Date of Judgement: 14 February 2020

Composition of the Bench: Hon’ble Justice Mr. Ashok Bhushan. Hon’ble Justice Mr. A.S. Bopanna, Hon’ble Justice Mr. R. Banumathi (Lordship also authored the judgement)

Timeline

13 September 2013: Trial Court awards a death sentence.

13 March 2014: High Court upholds the decision of the lower Court.

08 May 2017: Supreme Court upholds the decision of the HC.

09 July 2018: Review petition is filed before the hon’ble SC .

07 January 2020: Patiala House issues execution warrant.

09 January 2020: Curative petition is filed before the hon’ble SC.

14 January 2020: Curative petition is dismissed. 

29 January 2020: Preferred a mercy petition to the President of India.

31 January 2020: Sessions Judge passed an order delaying execution of death warrant.

01 February 2020: Mercy petition rejected by the President.

05 February 2020: Criminal revision petition filed by UoI is disposed off by the HC.

Hence, the current writ petition challenging the rejection of mercy petition.

The appellant Vinay Sharma- a death row convict in the Nirbahaya rape case,  filed the current writ petition challenging the rejection of clemency by the President broadly on the following grounds-

1. Non furnishing of relevant material under the RTI Act.
2. Non consideration of relevant material.
3. Torture.
4. Mental illness.
5. Consideration of irrelevant material by respondent authorities.
6.  Torture.

Contentions 

The counsel for the petitioner contended that- 

1. Relevant material like case record, medical status report, Social Investigation Report, nominal roll of the petitioner were not placed before the President for his consideration and only irrelevant material were placed.
2. The learned counsel for the petitioner filed an RTI application requesting records pertaining to rejection of the mercy petition. There was no response to the application. It was contended that without the perusal of the relevant documents, the petitioner could not exercise his right under Article 21 and challenge the rejection of mercy petition. 
3. The learned counsel adverted to the fact that Vinay Sharma was only 19 years old at the time of committing the crime, belonged to the lower stratum of the society and was not a habitual offender. The President would be privy to these acts only after a perusal of the Social Investigation Report. However, the same had allegedly not been  placed before him.
4. The petitioner was kept in solitary confinement. This was in violation of Sunil Batra v. Delhi Administration & Ors. 
5. The petitioner was subjected to mental and physical torture and was suffering from adjustment syndrome. On account of his mental illness the petitioner could not be executed. Reliance was placed on the United Nations General Assembly resolution mentioned in Shatrughan Chauhan and Another v. Union of India and Others.

Rejoinder 

Mr. Tushar Mehta, the learned Advocate General countered the forementioned arguments. He posited that-

1. All the relevant documents were placed before the President. 
2. The petitioner was regularly taken for medical examinations. Further, the Medical Officer In-Charge of Central Jail Hospital issued the petitioner’s medical report stating that he was well adjusted and his condition was stable. 
3. The learned AG adverted to the affidavit filed by Director General (Prisons) of Tihar Jail which submitted that the petitioner was never placed in solitary confinement and intermittently mingled with the other prisoners. 
4. The scope of judicial review of an order passed by the President of India is very limited, as had been observed by the Court in the trial of the co-accused Mukesh Kumar.
5. Referring to the Epuru Sudhakar and Another v. Govt. of A.P. and Others, the grounds on which the limited scope of judicial review could be invoked were enumerated. 

  5.1  that the order has been passed without application of mind;

  5.2 that the order is mala fide;

 5.3 that the order has been passed on extraneous or wholly irrelevant considerations;

 5.4 that the relevant material has been kept out of consideration;

5.5 that the order suffers from arbitrariness.

6. Additionally, in the foregoing case, emphasis was laid on the importance of indicating reasons in orders of clemency, and the power to withdraw the order in the contingency that certain materials of  extensive value were kept out of consideration while passing the order. 
7. In Shatrughan Chauhan (supra) the SC held that clemency powers under article 72 and 161 casted a constitutional duty on the President/Governor as the case may be. The same has to be exercised “in aid of justice and not in defiance of it”

The Judgement 

Re: Non furnishment of germane documents under the RTI application.

The Court did not find that it infringed article 21 of the petitioner  since the counsel for the petitioner admitted to being allowed to peruse the records despite no response to the RTI application. 

Re: Permission for perusal of the file which was placed before the President.

The Court opined that “such a course would not be appropriate” 

On account of the alleged discrepancies in the processing of the  file, the Court had deemed it expedient to scrutinize the file itself. Upon doing so the Court was satisfied as to the procedural and substantive propriety of the file.

Re: Non placement of germane documents in front of the President & placement of irrelevant material.

Upon perusal of the apropos file, the Court held that it found no merit in the foregoing contentions. 

Re: Solitary Confinement.

In Sunil Batra it was held that “a person is under sentence of death” only after the mercy petition is rejected by the executive and on further application, there is no stay of execution by the authorities. Therefore it was contended that solitary confinement prior to rejection of  mercy petition by the President of India is unconstitutional.  

Relying on the averments in the  affidavit filed by director general (prisons) the Court opined that the petitioner was kept in a single room for a limited period and in interest of his own security.  Thus, the petitioner was in protective custody as opposed to solitary confinement. 

Lastly, the SC referred to the decision tendered by the constitutional bench in Maru Ram v. UoI & Ors. and  Bikas Chatterjee wherein the Court held that-

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 of the matter. 

Ergo, the Court held that it found no grounds for judicial review of the clemency order and dismissed the writ petition.

The judgement can be accessed by clicking here.