Nirbhaya: SC questions death row convict's allegation of "non application of mind" on mercy plea

The Supreme Court Tuesday questioned one of the four death row convicts in the Nirbhaya gang-rape and murder case, as to how he can allege "non application of mind" by the President in rejecting his mercy petition. A 3-judge bench headed by Justice R Banumathi asked senior advocate Anjana Prakash, appearing for Mukesh Kumar Singh, as to how they can claim that all the facts in the case were not placed before the President when he dealt with the mercy plea.

"How can you say that these facts were not placed before his excellency the President? How can you say that there was non-application of mind by the President," the bench, also comprising justices Ashok Bhsuhan and A S Bopanna, asked the lawyer.

When the convict's counsel said that all facts were not placed before the President, Solicitor General Tushar Mehta told the bench that all the records, exhibits and the judgment in the case were placed before the President. Singh alleged procedural lapses in dismissal of his mercy plea by the President.

He said that certain supervening circumstances, including solitary confinement and procedural lapses have been ignored while considering his mercy plea. His counsel contended that the executive is not sitting on power of appeal but rather exercising constitutional duty, which is neither a matter of mercy nor grace.

Prakash referred to judgements on death sentence and the power of the president to grant mercy. He also told the court that the President's rejection of the mercy plea was on extraneous consideration as also mala fide, arbitrary and without materials. The arguments on the plea would continue at 2 pm. The bench is hearing Singh's plea against the dismissal of his mercy petition by President Ram Nath Kovind on January 17.

He has sought an urgent hearing on his plea against the dismissal of the mercy plea. The trial court has issued black warrants for the execution of all the four convicts - Mukesh, Pawan Gupta, Vinay Kumar Sharma and Akshay Kumar at 6 am on February 1. The 23-year-old physiotherapy intern, who came to be known as "Nirbhaya" (the fearless), 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.