By:- Divya Maini
In the Supreme Court of India
|NAME OF THE CASE
|Pawan Kumar Gupta v/s State of NCT of Delhi
|Writ Petition (Criminal) No. 122 of 2020
|DATE OF THE CASE
|20th March, 2020
|Pawan Kumar Gupta
|State of NCT of Delhi
|R. Banumathi, Ashok Bhushan & A.S. Bopanna
|Constitution of India
|Article 32 & 72 of the Constitution of India
The case deals a petitioner challenging the President’s order and is asking for a judicial review over it. The accused Pawan Kumar Gupta, gangraped the victim in a moving bus in Delhi. He was sentenced to death on 5th May, 2017. Not satisfied with the capital punishment, he filed for mercy petition to the President to decrease his punishment. After considering the circumstances of the case and mercy petition carefully, the President of India rejected his petition. Thereafter, the accused filed a writ petition under Article 32 of the Constitution of India to challenge the order of rejecting the mercy petition. He stated various allegations on the order of the President. But finally, this writ petition was also dismissed on 20th March, 2020.
The case deals with the petitioner, Pawan Kumar Gupta being a death-row convict of Nirbhaya case. On 16th December, 2012, the petitioner gangraped the victim with the other co-accused in a moving bus in Delhi. On 13th September, 2013, the Trial Court convicted Pawan Kumar Gupta and other co-accused. On 13th March, 2013, the High Court gave death penalty to the petitioner and other co-accused. Also, the Supreme Court gave the same verdict on 5th May, 2017.
In the given case, the petitioner filed a writ petition under Article 32 of the Constitution of India which relates to rejection of petitioner’s mercy petition by the President of India. In his writ petition, he claimed the following points: –
- The principles of considering mercy petition have not been followed.
- The plea of juvenility has not been determined on the basis of his school certificate.
- The President of India has not considered the mercy petition with an open mind.
BACKGROUND OF THE CASE
Mercy Petition is a petition filed by the accused to the President requesting him to change the order of death sentence into life imprisonment. A convicted person has the right to seek mercy from the President. President’s power of granting pardon is to serve better for the public welfare by administering lesser punishment than what was actually served by the court. This power of granting pardons is provided under Article 72 of the Constitution of India.
The case is of challenging the President of India’s order of rejecting the mercy petition. The Learned Judge of Supreme Court dismissed the Special Leave Petition. Unsatisfied by which the petitioner approached the President through a mercy petition which was rejected. He filed mercy petition for the second time which was also rejected.
Furthermore, the Delhi High Court dismissed the petitioner’s Criminal Revision Petition. The Additional Sessions Judge also dismissed the application.
FACTS OF THE CASE
The petitioner, Pawan Kumar Gupta is a death-row convict of Nirbhaya case. The Supreme Court gave death sentence on 5th May, 2017. On 30th August, 2018, the petitioner raised the plea of juvenility and filed an application before the Juvenile Justice Board. The Juvenile Justice Board transferred the application to the District and Sessions Judge, New Delhi. On 21st December, 2018, the Additional Sessions Judge dismissed the application stating that it was not maintainable. Then the petitioner filed Criminal Revision Petition before the Delhi High Court challenging the Additional Sessions Judge order. On 19th January, 2019, the Delhi High Court dismissed the Criminal Revision Petition.
Later, the petitioner approached the Supreme Court. He filed a Special Leave Petition which was also dismissed on 20th January, 2020. On 2nd March, 2020, the petitioner (Pawan Kumar Gupta) filed a mercy petition before the President. On 4th March, 2020, the President of India rejected the petitioner’s mercy petition. So, he filed the second mercy petition on 18th March, 2020 stating that the principles of considering mercy petition have not been followed. He challenged the President’s order of rejecting the mercy petition.
ISSUES RAISED BEFORE THE COURT
- The writ petition was filed before the Supreme Court by the convicted to challenge the order of rejection of mercy petition by His Excellency the President of India.
ARGUMENTS FROM THE PETITIONER SIDE
- Learned counsel for the petitioner (convicted) raised three claims that are
- Justice is not served as the mercy petition has been rejected;
- On the date of incident, the petitioner’s age was only 16 years so he was a juvenile, yet his claim of juvenility has not been determined and;
- The petitioner has been tortured in the prison and also suffered head injuries but he wasn’t given any proper treatment.
- Learned Counsel for the petitioner, Mr. Shams Khwaja, submitted that petitioner did not have the same intention along with the other co-accused. Thus, he shouldn’t be sentenced to death penalty with other co-accused.
- Through the press reports, the President of India expressed his concerns for ‘attacks on women’ and he also shared his view that if anyone is convicted for a crime under the Protection of Children from Sexual Offences Act, then he/she shouldn’t be given an opportunity to file for mercy petition. In light of these press reports, Mr. Shams Khwaja claimed that the President of India has not considered petitioner’s mercy petition with an open mind.
ARGUMENTS FROM THE RESPONDENT SIDE
- Learned counsel for the state submitted that the petitioner was given a proper treatment for his injuries.
- The claim for juvenility has been considered as well as rejected by the courts.
- Counsel for the state, Mr. Tushar Mehta, denied the claim regarding torture in the prison. He said stated that torture cannot be a ground for judicial review of the executive order which is passed under Article 72 of the Constitution of India.
- The claim of not having the same intention along with other co-accused has already been considered by the Trial Court and High court, where they have stated Pawan Kumar to be guilty and convicted.
- The clippings are only a press report, so the views and concerns expressed by the President of India is only regarding the improvements and changes which can be made in the POCSO Act.
- Article 32 of the Constitution of India provides remedies for enforcement of the rights.
- Right to move the Supreme Court for enforcing the rights.
- The Supreme Court shall have the powers to issue directions, orders or writs including habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever be appropriate.
- Parliament can empower any other courts to exercise within its local limits all or any of the powers of Supreme Court.
- This right shall not be suspended except provided by the Constitution.
- According to the powers of the President to grant pardon and to suspend, remit or commute sentences in certain cases under Section 72 of the Constitution of India,
- The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute sentences of any person who is convicted for an offence.
- In all those cases where the punishment is given by a court martial;
- In all those cases where punishment is given for the offence against any law relating to a matter to which Union’s executive power extends;
- In all those cases where death penalty is given.
- Nothing in subclause (a) of clause (1) shall affect the President’s power to suspend, remit or commute a death penalty which is exercisable by the State Governor.
It is to be noted the Supreme Court has not found any ground for judicial review of the order of rejection of mercy petition by the President of India. In the judgements of the following writ petitions-
- Mukesh Kumar v/s Union of India, 2020
- Vinay Kumar Sharma v/s Union of India & Ors., 2020
- Akshay Kumar Singh v/s Union of India & Ors., 2020
The Supreme Court has expressed its views that, when the power is vested in very high constitutional authority, it is to be presumed that the authority has acted carefully while considering all aspects of the matter. His Excellency the President of India has considered the petitioner’s mercy petition with an open mind. Hence, the court dismissed the writ petition.
Mercy Petition acts as a double-edged sword depending on the facts and circumstances of the case. The President of India has the power to grant pardons to the accused and this power shall be exercised based on the facts and circumstances of the case. The judicial review of the President’s order under Article 72 of the Constitution of India is available on the following grounds:
- The order has been passed without applying mind;
- The order is mala fide;
- The order has been passed on irrelevant considerations;
- The relevant materials have not been considered and;
- The order is arbitrary.
The case above brings out that there was no such relevant ground for judicial review of the order of rejection of mercy petition. The Apex Court considered the mercy petition and acted upon it accordingly. The order for such judicial review should only be practiced on the above-mentioned grounds.