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September 28, 2020

SC order on Friday on Nirbhaya convict’s plea challenging rejection of mercy petition

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The Supreme Court on Thursday reserved the order for Friday on Nirbhaya gang rape and murder case convict Vinay Sharma’s plea challenging rejection of his mercy petition by the President alleging that it was done in a “mala fide” manner.

Sharma, one of the four convicts on death row in the 2012 case, has also sought commutation of his death sentence to life imprisonment claiming that he has “developed mental illness” inside the prison due to the alleged “torture and ill-treatment”.

A bench of Justices R Banumathi, Ashok Bhushan and A S Bopanna said the court will pass orders on Friday at 2 pm on Sharma’s plea.


The bench heard arguments for nearly two hours on behalf of Sharma and the Union of India and NCT of Delhi.

Advocate A P Singh appearing for Sharma argued that his client’s mercy petition was rejected by the president in a “mala fide” manner and all relevant records were not produced before him.

He said Sharma was subjected to torture, put in solitary confinement and due to trauma suffered in jail, he has mental illness.

Solicitor General Tushar Mehta appearing for the Union of India and NCT of Delhi, opposed Singh’s argument and said the President has examined all relevant records and due process under the law was followed in rejection of Sharma’s mercy petition.

Mehta placed before the court a medical report of February 12 of Sharma and said he was found to be medically fit.

Singh alleged that the Delhi Lieutenant Governor and home minister had not signed the recommendation for rejection of his mercy plea.

The bench rejected Singh’s request to peruse recommendation for rejection of mercy plea.

It perused the record and said they had signed the recommendation for rejection of his mercy petition.

Sharma moved the apex court on Tuesday challenging the rejection of his mercy petition by the president and claimed the “hurried rejection” was “mala fide” and violated the letter and spirit of the Constitution.

He alleged in his plea that “public statements” made by ministers at the Centre as well as in the Delhi government supporting his execution had “pre-judged the outcome of his mercy petition”, and there also appears to be “non-application” of mind on the part of the President in rejecting his mercy plea.

“This must also be considered in light of the hurried rejection of the mercy petition by the President on January 31, within 48 hours of filing of the petitioner’s mercy petition. Therefore, the decision of rejection of petitioner’s mercy petition is mala fide and therefore violates the letter and spirit of the Constitution,” said the plea.

The apex court had earlier dismissed a plea filed by Mukesh Kumar Singh, another death row convict in the case, challenging the rejection of his mercy petition by the President.
Sharma has alleged that the President’s decision rejecting his mercy plea was communicated to him in jail on January 31.

His plea said that “public statements made by several ministers in the Council of Ministers in the Delhi Government as well as the Union government reflect that they strongly support the execution of the petitioner and had therefore, pre-judged the outcome of his mercy petition” even before it was filed.

“Therefore, it is submitted that the decision of the President which would be based on such aid and advise suffers from the same bias and is also rendered bad in law,” it said, adding, “there also appears to be a non-application of mind on the part of the President”.

The plea claimed that fundamental rights of Vinay were violated by the authorities as he has been kept in “illegal segregated confinement” in Tihar jail in violation of the law laid down by the apex court.

It also alleged that Vinay has been subjected to “torture and ill-treatment in prison, as a result of which he experienced grave mental trauma and even developed mental illness for which he has received psychiatric treatment in prison”.

It said that mental illness inside prison is one of grounds to commute the death sentence.

The trial court had on January 31 stayed “till further orders” execution of the four convicts in the case — Mukesh Kumar Singh (32), Pawan Gupta (25), Vinay Kumar Sharma (26) and Akshay Kumar (31), who are lodged in Tihar Jail.

Pawan has not yet filed a curative petition — the last and final legal remedy available to a person which is decided in-chamber. Pawan also has the option of filing a mercy plea.

The mercy petition of Akshay was also rejected by the President.

The 23-year-old physiotherapy intern was gang-raped and savagely assaulted on the night of December 16, 2012, in a moving bus in South Delhi. She died of her injuries a fortnight later in a Singapore hospital.

Six people including the four convicts, Ram Singh and a juvenile — were named as accused.

The trial of the five adult men began in a special fast-track court in March 2013.

Ram Singh, the prime accused, allegedly committed suicide by hanging himself in Tihar jail days after the trial began. The juvenile, who was said to be the most brutal of the attackers, was put in a correctional home for three years.

The juvenile was released in 2015 and sent to an undisclosed location amid concerns over a threat to his life. He, when released, was 20 years old.

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