Explained | A long wait for justice: Why very few death-row convicts are hanged?

Meanwhile, the Delhi government and the victim’s parents have filed a petition in Patiala House Court seeking issuance of death warrants against the four convicts, in an apparent attempt to expedite the execution of their death sentence. The court, on December 18, adjourned the hearing until January 7 and directed Tihar jail authorities to seek a response within seven days from the four convicts on whether they are filing mercy pleas.

During the hearing, Nirbhaya’s (an honorary name given to the 2012 Delhi gang rape victim; it means fearless) mother broke down in the court and asked, “The convicts have been given one more chance. Why are their rights being considered? What about our rights?"

"There is no guarantee that a final judgement will be delivered on the next hearing as well," she said fighting back her tears.

This presents a conundrum before the civil society – on the one hand, laws are being framed for speedy trials and death sentence to rapists (case in point: Andhra’s Disha Bill), and on the other, those who have been convicted for the most heinous crimes are yet to be hanged.

Why are convicts not being hanged?

This delay in execution of the death sentence can be attributed to the many safeguards bestowed upon a convict before he faces the noose. Jurisprudence in capital punishment argues that since death is irrevocable, authorities should wait for a convict to exhaust all legal options before carrying out the sentence. Besides, the delay in completion of the trial shifts the entire process ahead on the timeline.

For instance, for handling crimes against women and children, fast-track courts have been set up. These trial courts have to decide on the matter within six months after filing the charge sheet. However, trial courts often take 1-2 years to give a verdict.

The convict, then, has the right to appeal in higher courts, which are not bound to deliver the judgment within a set time frame. In case a trial court awards death sentence, it has to be confirmed by a high court, irrespective of a convict appealing against the trial court’s order.

If still not convinced, the convict can appeal against a higher court’s order in the Supreme Court, which, again, is not bound by time to deliver its decision.

After conviction by the Supreme Court, a criminal can file a review petition in order to appeal against the apex court’s order. If the review petition is also dismissed, the convict can go for the penultimate legal resort – a curative petition. There is no time frame within which it has to be filed, but courts have accepted six months after dismissal of review petition as the standard.

The ultimate resort is to file a mercy plea or clemency petition with the President. This process is provided under Article 72 of the Constitution and allows the President of India “to grant pardons, reprieves, respites or remissions” awarded by the courts. However, the Article doesn’t mention any prescribed procedure to deal with mercy petitions or any time frame within which the President must act upon them.

In addition, the courts take into consideration the delay (if any) in filing of review, curative and mercy petitions by incarcerated convicts and are generally lenient in such matters.

Where does that leave Nirbhaya’s case?

As of December 18, the review petitions of all four convicts stand dismissed. The Supreme Court rejected the review plea of Akshay Kumar Singh the same day, and the petitions of three others – Mukesh Kumar, Pawan Gupta and Vinay Sharma — were dismissed in July last year.

After the review petition is rejected, the state government can move a trial court to obtain a warrant of execution, commonly referred to as the death warrant or “black warrant”. The Delhi government has followed this procedure as mentioned above in this article.

The death warrant may be challenged if the trial court is found to have violated guidelines laid down by the Supreme Court in executing death penalty.

The four accused yet have the option of filing a curative or a mercy petition. The Patiala House court has given seven days time to the accused to seek clemency, and adjourned the matter till January 7.

How many criminals have served their death sentence?

According to a report titled Death Penalty in India, there were 371 prisoners on death row by the end of December 2017, with the oldest case being one from 1991.

However, only four death row prisoners – one (Dhananjoy Chatterjee) convicted for raping a minor, and three (Ajmal Kasab, Afzal Guru and Yakub Memon) for terrorism – have been executed in the last 13 years.  

The report pointed out that the longest a convicted felon has waited after his mercy petition has been rejected by the President is 25 years.

The year 2018 alone saw 162 persons sentenced to death by trial courts – the highest in nearly two decades.

In fact, President Ram Nath Kovind rejected his first mercy petition in June last year. It was filed in 2014 by a death row convict, who had burnt alive seven members of a family including five children, over a case of buffalo theft.

Before that, then President Pranab Mukherjee had rejected 30 mercy petitions, including those of Ajmal Kasab and Afzal Guru.

Cases where death penalty has not been executed despite President rejecting mercy plea

It was in 2014, that the Supreme Court had ruled that unexplained delay in execution can be grounds to commute (reduce to a less severe one) death penalty. This includes inordinate delays in deciding mercy pleas.

Technically, since mercy pleas are powers exercised by a constitutional functionary, it is not deemed to be a right of the convict. So, a trial court can issue a death warrant even if the mercy plea is pending.

Alternatively, a mercy plea can be filed a number of times, including after the death warrant has been issued.

A case in point is that of Surendra Koli from the infamous Nithari killings of 2006. Koli has been served death sentence in 11 of the 16 cases against him, which was upheld by the Supreme Court in 2011. Koli’s mercy petition was rejected by the President in 2014 and his hanging fixed for September that year by a trial court. However, the Supreme Court stayed Koli’s execution at 2 am over a pending review petition in another case.

In 2015, Koli moved the Allahabad High Court on grounds of delay in deciding mercy petition. His death sentence is commuted to life.

Due to multiple cases and trials, justice gets delayed with each case having to go through the full cycle of appeals and review.

Another case in point is that of Nalini Sriharan, arrested for the assassination of Rajiv Gandhi in May 1991. She is the longest serving woman prisoner in India. She was awarded death penalty by a special TADA court in 1998, which was confirmed by the Supreme Court in 1999. However, her sentence was also commuted to life by Supreme Court in 2014 on grounds of delay in disposing of her mercy petition. This year, she was granted a 30-day parole. She has also sought remission of her sentence from Tamil Nadu Governor.