In-depth analysis

Nirbhaya gang convicts are using law to avoid punishments

TPE Bureau
New Delhi, 16 January

One of the convicts among four convicts of Nirbhaya rape case that shook the country in December 2012 has filed a mercy plea before the President of India on the death warrant issued on 7 January by a sessions court and now the execution won’t take place on 22 January.

The mercy plea was filed by Mukesh Singh Tuesday. The three other convicts are Vinay Sharma, Pawan Gupta and Akshay Thakur.

On Wednesday, Mukesh also moved the Delhi High Court against death warrant issued on 7 January by a session’s court but the Delhi High Court rejected the petition.

During the hearing, Justice Manmohan Singh said the plea “looks like a strategy to prolong the legal process”.

It has been 9 years when Nirbhaya was raped, disheveled and killed by five men on 16 December 2012, one of the convict, a 35-years-old Ram Singh committed suicide in Tihar Jail but other four convicts were sentenced to death on 7 January 2020. The Judiciary took 9 years to announce justice, recently when Cyberabad police commissioner Vishwanath C Sajjanar killed 4 gang rape and muster suspects in Hyderabad encounter-Nirbhaya’s mother applauded him and said I and my daughter hadn’t got justice like this.

In the 16 December gang-rape and murder case of the 22-year-old physiotherapy student, a trial court in September 2013 had awarded death penalty to all four accused.

The Delhi High Court upheld the trial court order in March 2014. The case moved to the Supreme Court, which, in May 2017, accepted that this was a “rarest of rare” crime and all four were sentenced to hang.

Thereafter, review petitions were filed in the Supreme Court by Vinay, Pawan and Mukesh. All three petitions were dismissed in July 2018.

The fourth convict, Akshay, filed his review plea in December 2019, which was dismissed immediately.

Authorities at Tihar jail, where the four are lodged, then told them that they have two weeks to use their legal options, but no pleas — curative or mercy — were filed.

Then, on 7 January, a death warrant was issued by a Delhi sessions court. The warrant stated that all four will hang together at 7 am on 22 January.

It was only after this that curative petitions — seeking to commute the death sentence to life imprisonment — were filed by Mukesh and Vinay. These pleas too were dismissed by the Supreme Court on 13 January.

As of today, only Mukesh has filed a mercy plea. So, the remaining three can still file their own mercy pleas. Also, Akshay and Pawan have not yet filed any curative petitions.

Why no execution on 22 January?

Among the guidelines is the stipulation that a convict must be given 14 days between being informed that his mercy plea has been rejected and his execution.

The court had stated that this period of 14 days would give a convict time to make “peace with God” and accept his fate.

So, since Mukesh has filed his mercy plea only on 14 January, the execution cannot take place eight days later on 22 January.

How the convicts can buy more time

This case has four convicts, so, if the remaining three — Vinay, Pawan and Akshay — file their mercy petitions just as the 14-day period for previous petition is about to end, this whole process could take a minimum of 56 days.

Also, the Delhi High Court Wednesday refused a stay on the death warrant and told Mukesh to approach either the session court or the Supreme Court. Now, if he moves the lower court, another round of appeals and dismissals will begin, which will go all the way up to the Supreme Court.

Has the 14-day period stipulation always been followed?

In 2015, President Pranab Mukherjee rejected 1993 Mumbai blasts accused Yakub Memon’s mercy plea.

Memon’s lawyers — in a rare midnight hearing on 29 July at Chief Justice of India H.L. Dattu’s residence — had urged the Supreme Court to uphold the 14-day rule or at least the seven-day rule prescribed by the Maharashtra Jail Manual.

But Dattu rejected the plea and Memon was hanged just a few hours later on 30 July.

How does a President decide on a mercy petition?

Under Article 72 of the Constitution, “the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death”.

But the President cannot exercise his power of pardon independent of the government.

Rashtrapati Bhavan has to forward the mercy plea to the Ministry of Home Affairs, seeking advice. The ministry, in turn, forwards this to the state government concerned. Based on the reply from the state, the ministry formulates its advice to the President. It is after this that the President takes a call.

Although the President is bound by the government’s advice, Article 74(1) empowers him to return it for reconsideration once. But if the government decides against any change, the President has no option but to accept it.

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