Nirbhaya gang rape case: Hanging on

The convicts in the Nirbhaya gang rape-cum-murder case are running out of options to delay their hanging any further.

Nirbhaya’s mother and lawyers outside Patiala House Courts in New Delhi on January 7 after death warrants were issued against the convicts.

ON the afternoon of February 2, a Sunday, the Delhi High Court opened its gates unusually to facilitate the hearing of the criminal revision petitions filed by the Centre against the four death-row convicts in the 2012 Nirbhaya gang-rape case. The Centre’s petitions sought to set aside the common order passed by Additional Sessions Judge (ASJ), Patiala House Court, on January 31, postponing the execution of their death warrants for an “indefinite period”.

The ASJ passed the order on the grounds that the four convicts had not exhausted the legal remedies they were entitled to. The Centre justified the unusual hearing by the High Court on a Sunday on the contention that any delay in hearing its petitions would have a “dehumanising effect” on the convicts.

The Supreme Court, in Shatrughan Chauhan vs Union of India , in 2015, had referred to a dehumanising effect on convicts in a different context. In that case, the court was concerned about the inordinate and undue delay by the President in deciding the mercy petitions of convicts seeking commutation of their death sentences, for “inexplicable reasons”. Little did the court envisage that the Centre would twist the logic of preventing a “dehumanising effect” to justify denial of legitimate legal remedies available under the Constitution to death-row convicts. On February 2, the Centre used that logic not only to question the indefinite postponement of the hanging of the four convicts in the Nirbhaya case but to seek directions from the High Court to facilitate the immediate hanging of those among the four who had exhausted their legal remedies, without waiting for the remaining to do so.

Justice Suresh Kumar Kait, the judge at the hearing in the High Court, in his judgment delivered on February 5, agreed that the four convicts had been guilty of a heinous offence of rape and the bone-chilling murder of a young girl. But he added: “However, so long as life lasts, so long shall it be the duty and endeavour of the court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable.”

Justice Kait wondered whether it was relevant to consider that the delay in the execution of the death sentence could be attributed to the convict resorting to a series of untenable proceedings which had the effect of defeating the ends of justice. “It is not uncommon that a series of review petitions and writ petitions are filed in the court to challenge judgments and orders which have assumed finality, without any seeming justification,” he said.

In the Nirbhaya case, the Supreme Court had dismissed the criminal appeals of all the death-row convicts on May 5, 2017. Thereafter, review petitions were filed by the convicts, namely, Mukesh, Akshay, Vinay Sharma and Pawan Gupta, after 186 days, 950 days, 225 days and 225 days respectively. Justice Kait wondered why nobody had bothered to execute the death warrants after the dismissal of the criminal appeals on May 5, 2017. “They waited for reasons best known to them, till convict Mukesh filed review petition before the Supreme Court on November 6, 2017, and the same was dismissed on July 9, 2018. Thereafter convict Vinay Sharma and Pawan Gupta filed review petitions on 15.12.2017 and same were dismissed vide order dated 09.07.2018. Even thereafter, all authorities concerned were sleeping and waited till Akshay Kumar Singh filed petition, with 950 days delay, on 10.12.2019 and the same was dismissed on 18.12.2019. However, convicts are taking shelter of the Article 21 of the Constitution of India which is available to them till their last breath,” Justice Kait concluded.

Relying on the Supreme Court’s judgment in Yakub Abdul Razak Memon vs State of Maharashtra (2015), Justice Kait reasoned that the law permitted a convict to move a subsequent mercy petition even after the dismissal of the first mercy petition in case of a change in circumstances. Thus, he refused the Centre’s plea to adversely segregate Mukesh from the similarly placed convicts simply because he had been earnestly pursuing his legal remedies. Relying on another Supreme Court’s judgment, Justice Kait held that the death warrants of all the convicts be executed together but not separately.

Among the convicts, Pawan Gupta had not yet filed his curative petition and mercy petition after the dismissal of his review petition by the Supreme Court on July 9, 2018. Keeping this in view, Justice Kait directed the convicts to take steps, if they wished, to make any type of petition before any institutions/authorities available under law within one week from February 5, failing which the High Court “expected the institutions/authorities concerned to deal, as per the law applicable, on delay, if any, without further delay”.

With the President rejecting the mercy petition of Akshay Kumar Singh on February 5, Justice Kait’s judgment appeared to have left few options to Pawan Gupta, the only remaining convict who was yet to file his curative petition in the Supreme Court and also submit his mercy petition to the President under Article 72 of the Constitution. Having dismissed the curative petitions of the other three convicts, the Supreme Court is unlikely to accept Pawan Gupta’s petition if he chooses to file one against his death sentence. The Supreme Court’s curative jurisdiction can be invoked after the main and review judgments in a case on limited grounds if the litigant claims denial of natural justice either because he was not given the opportunity to be heard or if any of the judges who heard the case was biased.

There is little hope that the President would accept Pawan Gupta’s mercy petition if he chooses to submit one within the deadline fixed by Justice Kait. But Pawan Gupta’s plea of juvenility, although based on the inconsistency of documents, is yet to be satisfactorily resolved. In his review petition, Pawan Gupta brought new evidence in the form of the register of the school he first attended which records his date of birth as October 8, 1996, which makes him 16 years, two months and eight days old on the date of the incident—December 16, 2012.

Section 94(2) of the Juvenile Justice Act, 2015, gives primacy to school documents over municipal records. Pawan Gupta’s birth certificate shows his year of birth as 1992. The trial court, which found him guilty, relied on his birth certificate as the school register emerged only after the Supreme Court dismissed his appeal. If the validity of this new document is upheld and Pawan Gupta is declared a juvenile in conflict with law, the death penalty imposed on him will become unimplementable. However, the Supreme Court dismissed Pawan Gupta’s review petition rather unconvincingly.

But President Ramnath Kovind will find it difficult to dismiss another mercy petition submitted by concerned citizens on behalf of the convicts without addressing their contrary views in the midst of the frenzied bloodlust demanding the prompt execution of the four convicts. “Excluding fellow human beings from entitlement to mercy has nothing to recommend it except a very base bloodlust that we encourage at our peril. If we have to become a more humane and compassionate society, and leave a better, less bloodthirsty world behind, we have to curb our instinct for retribution,” says this mercy petition.

It further says: “To honour Nirbhaya, we must address the structural causes of gender violence and crime in our society; hanging only degrades the sanctity of life that was so inhumanely violated that winter’s night. We need to ask ourselves why imprisonment for the rest of their natural lives will not suffice to condemn what has happened or to assuage our collective sorrow. Excessive and needless punishment to appease a retributive baying for blood lacks moral justification and descends into cruelty.” They warn that the state’s use of such ritualised violence may well perpetuate and strengthen a general propensity to violence and fail to contribute to an egalitarian society respecting the dignity and autonomy of women.