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New Delhi: A last-ditch attempt by the lawyers of December 2012 gang-rape convict Mukesh Singh, challenging the rejection of his mercy plea by the President, brought forth claims that he was sexually abused in prison, and that not all documents were placed before President Ram Nath Kovind.

Mukesh is among the four convicts who are to be hanged at 6 am on 1 February. He has already exhausted his options of review, curative and mercy pleas.

Senior advocate Anjana Prakash, a former judge of the Patna High Court, Tuesday represented Mukesh before a Supreme Court bench of Justices R. Banumathi, A.S. Bopanna and Ashok Bhushan while challenging the President’s decision exercised under Article 72 of the Constitution.

‘Was sexually abused in prison’

Prakash claimed that the convict had been sexually abused in prison.

“Mukesh was sexually abused. Mukesh was forced into sexual intercourse with co-accused Akshay. Sticks were inserted in his anus and no hospital treatment was offered. Jailor used to give him painkillers,” she argued. “It is only when blood oozed out of his anus that he was offered some medical help. Where are the medical records…?”

The counsel also made a case that Mukesh did not rape the victim and was just the driver of the bus in which the crime was committed on 16 December 2012. She argued that his DNA was not found on the body of the victim, and that he was being framed. At this juncture, however, the SC stated that it would not go into the merits of the case.

SG Tushar Mehta then said the person who devoured a human life was now “arguing about the value of human life”. He added that “sufferings in jail” can “never be a reason to accept a mercy petition”. At this point, Prakash intervened and said, “let the President take that call”.

Also read: How 16 December gang-rape convicts are using the law to avoid execution

Not all records placed before President

Another point argued by Prakash was that all judgments pertaining to the case were not placed before the President when he decided on the mercy plea.

The President communicated on 17 January his decision rejecting Mukesh’s mercy plea, a day after the Ministry of Home Affairs forwarded the file to the office of the President recommending rejection of the mercy plea.

Prakash argued that powers granted to the President is not a “matter of grace” but that of the highest “Constitutional obligation” that needs to be exercised with “great caution”.

She went on to say that an RTI application filed by Mukesh immediately on the rejection of his mercy plea, revealed that not all records of case were put before the President.

The RTI plea was primarily filed with the office of the President. It was, however, transferred from the President’s office to the MHA, which forwarded it to the office of the Lt Governor of Delhi and the Tihar jail superintendent, Prakash said in the court.

Only the Tihar Jail superintendent replied stating that three documents were provided by him, including the medical record of the accused, she said.

Prakash attempted to attack the Centre by arguing that none of the lower court records was placed before the President. “As per the directions of the Supreme Court, all relevant records and judgments related to the case need to be placed before the President so that he can satisfy himself,” she said.

The bench questioned how was there a “non-application of mind” by the President. “All these points on merit have been considered by the trial court, HC, SC and the President. On what basis can you say that there was non-application of mind by the President?” Banumathi asked.

Solicitor General Tushar Mehta then furnished a fresh affidavit from the MHA before the top court, stating that all relevant records and judgments were presented before the President.

Mukesh’s counsel, however, questioned the “pompous nature” of the affidavit.

“What kind of a pompous nature of an affidavit is this? What is this affidavit? SG is trying to satisfy the court, but the court is not judging the mercy plea here,” said senior counsel Anjana Prakash. “Why was this affidavit not given to the President? Why was it not given to us in reply to the RTI? Justice hurried is always justice buried. This is what we have learnt as both a lawyer and a judge.”

Prakash’s submissions Tuesday draw basis from a Supreme Court verdict of 2006 where the SC had held that the powers of the President or a Governor under Articles 72 and 161 are subject to judicial review.

Prakash even contended that Mukesh was kept in solitary confinement and this itself was an important ground to be considered by the President. However, SG Tushar Mehta placed another affidavit before SC by Tihar jail superintendent, stating that he was never kept in solitary confinement. It said Mukesh was kept in a room alone at the time mentioned but that room had “iron bars which opened out to air outside” and it was part of multiple rooms on the particular floor.

However, when Prakash sought to inspect the document submitted by the MHA in court that would show what all documents were sent to the Rashtrapati Bhavan, Justice Banumathi rejected the request and said “this will pave way for uncharted territory”.

The SC has now reserved the order for 29 January.

Also read: Modi govt moves SC to speed up hangings, change its 2014 guidelines on death row convicts

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