The Supreme Court will pronounce, on Wednesday, its verdict in the petition filed by one of the four convicts in the 2012 Delhi gang rape and murder case, Mukesh, challenging the rejection of his mercy petition by President Ram Nath Kovind.
Another convict Akshay Thakur (31) also filed a curative plea late Tuesday.
President Kovind had rejected Mukesh's mercy petition on January 17 just four days after it was filed—the fastest decision ever on such a plea.
Senior counsel Anjana Prakash, who represented Mukesh on Tuesday before a three-judge bench led by Justice R Banumathi, challenged the rejection of his request for a presidential pardon.
Mukesh and his three other accomplices, who were convicted for the gang rape and murder of a 23-year-old paramedic student in a moving bus in Delhi in 2012, have been sentenced to death. Earlier this month, a Delhi court had ordered the four of them to be executed on February 1.
Prakash told the bench, which also comprises justices Ashok Bhushan and AS Bopanna, that the government failed to place all the records of the case before the President who could, therefore, not make an informed decision.
She told the court that documents, including the trial court judgment, were not transmitted to the President, who arrived at his decision without having had an opportunity to examine relevant records.
Prakash also highlighted the fact Mukesh was kept in solitary confinement and the President was not informed of the same. She also cited previous judgments of the court in Shatrughan Chauhan and Dharam Pal cases as per which solitary confinement was one of the grounds for commutation of death penalty to life imprisonment.
One of the arguments against the petition by Mukesh was that the President was not exercising a judicial function and his decision cannot, therefore, be challenged in a court of law.
Prakash, however, responded to the same by arguing that a death row convict can challenge the manner in which the President exercised his power to grant pardon under Article 72 of the Constitution. She cited judgments of the Supreme Court to that effect. "Execution of a death sentence should also be as per constitutional principles," Prakash told the court.
She also claimed that Mukesh was sexually abused in jail and his brother, Ram Singh, who was the prime accused in the case, was murdered in the jail. Prakash said that though Mukesh wanted to lodge a police complaint against the same, he was not permitted by the authorities to do so.
The pace at which the President rejected mercy plea was also pointed out by Mukesh's counsel to allege "non-application of mind" by the President.
Solicitor General Tushar Mehta, appearing for the Central government said it was ironical that the convict would raise arguments regarding sanctity of life considering the gruesome nature of the crime for which he has been found guilty.
Regarding the pace at which the President made the decision, Mehta said that as per Supreme Court judgments, a mercy plea has to be decided without delay and undue delay by the President in deciding mercy petitions will have a de-humanising effect.
Importantly, Mehta disputed Mukesh's claim that relevant records were not sent to the President and also denied that Mukesh was kept in solitary confinement. He said Mukesh might have been kept segregated in a single cell, but that did not amount to solitary confinement.
"Mukesh was never kept in solitary confinement. Every convict is sometimes kept in a separate cell for his own safety or for the safety of other convicts. That is not solitary confinement. Solitary confinement means completely cut off from the world.
Even during times when he (Mukesh) was kept in a separate single cell, he was allowed to come out to the yard during scheduled hours just like any other convict," the Solicitor General said.
On Mukesh's complaint of sexual abuse in jail, Mehta said the allegations, even if they are true, would not be relevant while considering a mercy plea. He stressed that if there was ill-treatment in jail, the convict could raise it at an appropriate forum but it cannot be a ground for commuting a death sentence.
"This is not a luxury jurisdiction that though I'm guilty of this heinous crime, since I was ill treated, I should be given mercy," the Solicitor General emphasised.
The execution of the four convicts, which was initially scheduled for January 22, was pushed to February 1 after Mukesh filed his mercy petition before the President.