Nirbhaya Case: Mukesh Singh, Vinay Sharma, Akshay Singh and Pawan Gupta are to hanged on Saturday.
"Expeditious decision" by the President on mercy petition cannot be a ground to challenge its rejection by one of the four death row convicts in the Nirbhaya gang-rape and murder case, the Centre told the Supreme Court on Tuesday.
Delay in deciding the mercy petition by the President would have a "de-humanising effect" on the convict, the Centre said.
Opposing the plea of the convict, Mukesh Kumar Singh, against the rejection on his mercy petition, it also said that allegations of ill-treatment in jail cannot be a ground for mercy to a person who has committed such a heinous crime.
While the counsel appearing for Mukesh argued that "hate the sin, not the sinner", Solicitor General Tushar Mehta told a bench headed by Justice R Banumathi that the convict cannot be allowed to have this kind of "luxury litigation" in the case.
The bench, also comprising Justices Ashok Bhushan and A S Bopanna, asked senior advocate Anjana Prakash, appearing for Mukesh, as to how they can say there was "non-application of mind" by the President in rejecting the mercy plea on January 17.
The bench, after hearing arguments from both sides, reserved its order for Wednesday.
The four death row convicts -- Mukesh, Pawan Gupta, Vinay Kumar Sharma, and Akshay Kumar -- are scheduled to be hanged at 6 AM on February 1.
During the arguments, Prakash told the court that entire materials and records of the case were not placed before the President when he was considering the mercy plea.
Mehta countered the submissions and said, "Entire material which was required to be considered by the President was sent to the President by the Ministry of Home Affairs".
"Delay can be an argument to challenge it but the expeditious decision on mercy plea can never be an argument to challenge the dismissal of mercy petition," Mehta said, "A person on death row faces death every day. If there is a delay, it would have a de-humanising effect. There cannot and should not be any delay in deciding mercy plea".
Mehta said that as per the latest medical report of Mukesh, which was also sent to the President, he is "fit and fine".
Referring to an earlier verdict of the apex court, he argued it was said in the judgement that it would not be appropriate for the top court to lay down guidelines as to how the President should use his power under Article 72 of the Constitution.
Article 72 of the Constitution deals with the power of the President to grant pardons and to suspend, remit or commute sentences in certain cases.
Mehta placed before the bench two original files, one containing correspondence for consideration of mercy petition filed by Mukesh and another file containing notings.
"Both the files are received and kept for the perusal of the court," the bench said and declined the request of petitioner's counsel seeking permission to peruse the files.
Prakash told the bench that records relating to certain supervening circumstances, including solitary confinement, were not placed before the President.
Referring to an earlier apex court verdict, she argued that a death row convict can be kept in solitary confinement only after dismissal of his or her mercy plea but in this case, Mukesh was kept in solitary confinement time and again.
Prakash argued that non-application of mind includes non-appreciation of materials and records relating to solitary confinement and custodial torture, including sexual abuse of Mukesh in jail, were never sent to the President.
She said that keeping a convict in solitary confinement is one of the circumstances to commute the death penalty.
Mehta, however, argued that keeping a convict in solitary confinement and keeping him or her in a separate cell in jail were different things.
"He (Mukesh) was never kept in solitary confinement. He was kept in a separate cell for some time and this can be done with other prisoners also," he said.
Prakash argued that the process of deciding the mercy plea cannot be expedited at the "cost of justice" as it is a matter of life and death of a person.
When she pointed out to the role of Mukesh in the case, the bench said, "All these aspects have been dealt with by the trial court, high court, and this court".
"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 asked.
Prakash told the bench that jail authorities had forwarded documents like the role of Mukesh, his medical report, trial court judgement, and details of punishment awarded to him along with the mercy petition.
"Are you contending that he (President) has to look into every document while dealing with mercy petition?" the bench asked.
To this, Prakash said entire records of the case should have been sent to the President for his perusal.
"You punish the sin, but deal with the sinner in a different way," she said, adding, "He (Mukesh) was sexually abused in jail. His brother and co-accused (Ram Singh) was murdered in jail. He has said in his mercy petition that he has not slept for five years due to fear of being attacked or abused in jail".
The apex court had earlier rejected the curative pleas of Mukesh and Akshay. The other two convicts, Pawan (25) and Vinay are yet to file curative petitions in the top court.
The 23-year-old physiotherapy intern, who came to be known as "Nirbhaya", 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.