Thread by @barandbench

Nirbhaya: Three-Judge Bench of the Supreme Court comprising Justices R Banumathi, Ashok Bhushan, and AS Bopanna begins hearing the plea filed by one of the convicts, Mukesh, against the rejection of his mercy plea.

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Anjana Prakash, Counsel for Mukesh, tells the Court that the mercy plea was rejected shortly after the curative petition filed hy Mukesh was dismissed by the Supreme Court

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Prakash argues that due consideration was not given to Mukesh's plea.

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Prakash cites a decision of 1989 by a 5-Judge Bench in Kehar Singh vs UOI to say that decisions by the President are also subject to "human fallibility"

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Prakash argues that the most trained kinds are also sometimes liable to falter and when it comes to matters concerning denial of liberty and life, decisions should be subject to a high authority.

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Right to pardon is part of the Constitunal scheme and is not "a private act of grace", Prakash says.

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Prakash says that the Presidential pardon is within the scheme of Constitunal duty and must be exercised with great responsibility

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Prakash says that the stand of the applicant is that the President's order is mala fide, suffers from arbitrariness and is passed without application of mind.

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Prakash raises concerns of procedural lapses and solitary confinement in Mukesh's case.

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The due and prescribed procedure was not followed, Prakash argues.

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Prakash says that solitary confinement can be done only after rejection of mercy petition and placing a convict in solitary prior to rejection of mercy plea is unconstitutional. She says that various visits have revealed that these convicts had been placed in solitary

Prakash says that legal aid was given late to the convicts.

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The question is not that the matter needs to be decided afresh but whether all the relevant material was placed before the President before the mercy plea was rejected, Prakash says

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Prakash argues that the judgement of the Trial Court was not placed before the President. SG Tushar Mehta intervenes and objects to this submission, says all material was placed before the President.

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Bench rises for lunch. The hearing will continue at 2PM

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Bench assembles for the post lunch session.

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Prakash resumes her arguments, says Article 72 stipulates that sin should be differentiated from the sinner

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Judicial verdict stands as it is. Independent of that, another body or person has to scrutinize and the President can very well go and look into the reasons why the lower Courts have decided in a certain way, Prakash says

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Prakash refers to Kehar Singh case which states that the President may scrutinize the records and may arrive at a different conclusion as regards guilt or sentence. This, however, does not amend or alter the judicial order or records, Prakash says

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Senior Counsel Anjana Prakash cites the Shatrughan Chauhan case

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At every stage you have to apply your mind, you are playing with someone's life, Prakash argues

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Prakash reading out from Mukesh's petition says that he was sexually abused in the prison, his brother committed suicide or was murdered.

Mukesh's plea says he had a "living death" in the prison.

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Mukesh's plea contends that the suicide of one of the accused was in fact a murder but "it fell on deaf years", Prakash tells the Court while reading out form Mukesh's plea

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Justice Banumathi asks about the reason for raising the point of solitary confinement.

Prakash says it is a ground for commutation from death to life term and submits that the report on the same was not placed before the President.

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Justice Banumathi says the petitioner should not have been put in solitary confinement.

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Senior Counsel Anjana Prakash cites the precedent laid down in Sunil Batra vs Delhi Administration.

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Justice Banumathi asks what the submission of the petitioner is in light of all the principles and points of law stated.

Prakash stresses that the point is that Mukesh was kept in solitary confinement.

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Senior Counsel Rebecca John takes the Court through certain records which establish that Mukesh was kept in solitary confinement.

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After the filing of the mercy petition, the recommendation for the rejection of the same from the MHA and concerned authorities came at a "lightning speed", but on what documents was this recommendation made, Prakash argues

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How are such situations dealt with...There have been numerous instances when Courts have called for the records, Prakash

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Prakash stresses on the manner in which the mercy plea was dealt with and says the sinner is being punished, not the sin.

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Concluding her arguments, Prakash also says that this is not a case where the execution is being attempted to be delayed as is being perceived.

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Solicitor General Tushar Mehta begins to make his submissions on behalf of the Respondent State.

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Mehta argues on the maintainability ot the petition under Article 32 of the Constitution.

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Mehta refers to the decision in Shatrughan Chauhan case on the aspect of the documents required to be supplied to the President in cases of mercy petitions. Mehta says all the requisite documents were supplied.

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Mehta says that the Supreme Court has held in Shatrughan Chauhan that any delay in execution of a convict has a dehumanizing effect and has directed the State to conduct executions expeditiously. This, the mercy plea was processed expeditiously

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The recommendations were processed by the Lt. Governor of Delhi and thereafter by the MHA expeditiously to avoid any delay, Mehta argues

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Mehta addresses the allegations of sexual abuse in the prison and says that the same cannot be a ground for mercy.

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In case of being sexually abused in prison, the limited right a convict has is to approach the Courts against the same but it cannot be used as a ground for mercy... "This is not a luxury jurisdiction", Mehta says

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Mehta distinguishes between solitary confinement and being lodged in a single cell, says Mukesh was not kept in solitary but in a single ward for security reasons. He was not kept from seeing other people or mixing up with others in the yard, Mehta tells the SC

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Mehta says that delay in execution can be an argument but expeditious disposal of a plea cannot be taken as a ground for seeking mercy

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Once a convict is awarded death, he faces death every day and therefore any delay in execution has a dehumanizing effect, Mehta

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The decision is neither arbitrary, nor was any record kept out of President's scrutiny and all the judgments by all the Courts were placed before him, Mehta submits.

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It would not be appropriate for this Court to lay down any guidelines on how the President must exercise the Power under Article 72, Mehta says quoting precedents laid down by the Supreme Court

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Justice Banumathi asks about the medical records and certificates of the convict.

Mehta tells that all the required documents and medical records were supplied.

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Mehta concludes his arguments.

Sr. Counsel Anjana Prakash makes her rejoinder arguments, says that the reply filed by the State is evasive and does not details as to what are the "relevant documents" that were supplied to the President.

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Prakash makes a passionate submission to say that the Supreme Court is not to decide the mercy plea. The same was to be decided by the President and the State is attempting to satisfy the Court on the merits of the mercy plea.

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If i have raised a plea of being put in solitary confinement, that should have been out before the President, the sane does not need to be refuted before the Supreme Court, Prakash says

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They say that relevant documents were supplied to the President, but what were these records and documents, they won't say, Prakash says.

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Prakash says that all he documents including all the judgments and case diary is all required to be given to the President. Whether it was all given, we don't know, Prakash submits

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Rebecca John adds that the records pertaining to solitary confinement and custodial torture could have been supplied by the Jain authorities only.

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Mehta intervenes to say that solitary confinement is never a ground for mercy.

Prakash refutes the point to say SC in 2015 laid down that solitary confinement is ab abrogation of Article 21 and cumulative with other points can be a ground for mercy

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Prakash: It is about someone's life here

Mehta: It was also about someone's life for which he (Mukesh) is punished.

Prakash: Hate the sin, not the sinner. This is the principle since Gandhiji's time; should be followed or we'll have more custodial deaths and encounters

Prakash submits a list of documents that they think should have been supplied to the President, concludes her arguments.

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Supreme Court reserves its judgment on the petition filed by Mukesh challenging the rejection of his mercy plea by the President. The judgment will be delivered on Wednesday, January 29.

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Supreme Court hears Nirbhaya Convict, Mukesh's plea challenging the rejection of Mercy Petition [LIVE UPDATES]
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