December 16 gang rape case: Another convict moves mercy plea, hanging unlikely on February 1

The Supreme Court on Wednesday dismissed a petition filed by one of the four accused in 2012 Delhi gang rape and murder case challenging rejection of his mercy plea by President Ram Nath Kovind.

A bench of justices R Banumathi, Ashok Bhushan and AS Bopanna turned down the argument of the convicted Mukesh Singh that all the relevant records of the case were not sent by the Delhi government to the President, who could, therefore, not make an informed decision.

The court noted that records -- including judgments of the trial court, the high court and the Supreme Court; details of the review and curative petitions filed by the petitioner and other co-accused; the present status and other details of the petitioner such as past criminal history, and economic condition of the family of the petitioner -- sent by the Delhi government to the President.

It, therefore, concluded that the President took into account all relevant material before arriving at his decision.

“By perusal of the note, we have seen that all the documents were taken into consideration, and upon consideration of the relevant records and facts, and circumstances of the surrounding crime, the President has rejected the mercy petition”, the judgment said.

The court also observed that sufferings in prison, as alleged by Mukesh in his plea, cannot be grounds to challenge the rejection of mercy plea by the President.

Mukesh claimed in his plea that he was sexually abused in jail and unlawfully kept under solitary confinement.

The court also made it clear that merely because there was a quick rejection of the petitioner’s mercy petition by the President, it cannot be assumed that the matter was dealt with a predetermined mind.

President Kovind rejected Mukesh’s mercy petition on January 17, four days after it was filed — the fastest decision ever on such a plea. Mukesh argued that rejection of his mercy plea by the President showed non-application of mind and reflected bias and a pre-determined mind.

The court, however, held that while delay in disposal of mercy petition may be a ground for court’s interference with the order of the President, quick consideration of the mercy petition, and swift rejection of the same, cannot be grounds for judicial review of the President’s decision.

Mukesh and three others, who were convicted for the gang rape and murder of a 23-year-old para-medic student in a moving bus in Delhi, were sentenced to death. They are scheduled to be executed on February 1. However, a senior lawyer said for that to happen, the convicts will have to be hanged separately.

“When there are more than one death row convicts in the same case, they can be executed separately (on exhaustion of legal remedies) provided separate death warrants are issued,” said Supreme Court advocate Virag Gupta.

“This case is also an example of how judiciary has been affected by media hype. Initially, when media hype was there, investigation, trial and high court judgment all came within two years. After media hype subsided, Supreme Court took five years (to decide the case). After Hyderabad encounter in 2019, there was media hype again and the judicial process has been on overdrive since then,” Gupta said.

Earlier, the Tihar jail authorities had indicated that they intend to hang the four convicts together. HT reported January 13 that the jail authorities have widened the gallows so that the four can be hanged simultaneously. Before that, no more than two people could be hanged at the same time in Tihar

However, none of them barring Mukesh have exhausted all their legal remedies.

The four convicts, Mukesh, Pawan Gupta, Vinay Sharma and Akshay were convicted and sentenced to death by the trial court in 2013.

Their conviction and sentence were confirmed by the Delhi high court in 2014 and the Supreme Court in May 2017. Subsequently, the review petitions filed by three convicts, Mukesh Singh, Pawan Gupta and Vinay Sharma against the Supreme Court judgment were dismissed in 2018 and the review petition by Akshay was dismissed in December 2019.

Additional Sessions Judge, Patiala House, on January 7, 2020, issued a death warrant against four convicts and scheduled their execution on January 22.

This left the convicts with two weeks’ time to file both the curative and mercy petition.

Two of the accused, Mukesh and Vinay Sharma then filed curative petitions in the Supreme Court challenging the May 2017 judgment of the top court which had upheld their conviction and death sentence. The Supreme Court dismissed the curative petitions on January 14.

Immediately after that, Mukesh had filed his mercy plea before the President which led to the execution date of the four convicts being postponed to February 1.

One of the accused, Akshay, filed his curative petition in Supreme Court on Tuesday. The curative petition filed by Akshay will be decided by a five-judge bench headed by justice NV Ramana at 1 pm on Thursday.

Another convict, Vinay Sharma, whose curative petition was dismissed on January 14 filed his mercy petition on Wednesday before the President.

There was no immediately clarity on how this would affect the date of execution, though the law demands that all remedies are exhausted before a death row convict is sent to the gallows.

The way the petitions are being filed by the convicts has come under criticism from several experts and the Union government, on January 22, filed an application in Supreme Court seeking changes in the manner in which the remedies can be exercised by imposing deadline for death row convicts to file curative and mercy petitions.