Nirbhaya case: What is causing the delay in hanging the rapists?

Representational Image.

A Delhi court, on January 16, said the four convicts in the 2012 Delhi gang rape and murder case will not be hanged on January 22, as scheduled earlier.

The move came after the Delhi government informed the court that the mercy petition of one of the convicts – Mukesh Kumar Singh – was still pending before the authorities. On January 17, President Ram Nath Kovind rejected the mercy plea.

The order will cause yet another delay in the execution of the death sentence of the four convicts in the Nirbhaya case. What is the status as of now, and what is causing the delay, let’s find out:

What has happened so far?

The Supreme Court had, in December 2019, rejected the review petition of one of the four convicts in the Nirbhaya case. The apex court, in July 2018, had rejected the review pleas of the other three. With the latest dismissal, the review pleas of all four convicts stand dismissed.

The same day, a trial court in Delhi, had said that it will give its ruling on the petition, filed by Nirbhaya’s mother Asha Devi and the Delhi government, to expedite the procedure for hanging the convicts on January 7.

On January 7, the court issued death warrants for the four rapists and set the date for hanging as January 22. The court directed the four to be executed at 7 am in Tihar Jail, where they are currently lodged.

In their last ditch effort to escape the gallows, two of the convicts – Vinay Sharma and Mukesh Kumar Singh – filed curative petitions against their hanging, which have been rejected by the Supreme Court. Two others – Pawan Gupta and Akshay Singh – haven’t exhausted this legal remedy.

Having exhausted all legal remedies, Mukesh Kumar Singh has now resorted to the ultimate recourse, and filed a mercy plea before the President.

Why the delay?

The delay in execution of the death sentence can be attributed to the many safeguards bestowed upon a convict before he faces the noose.

As per procedure, the convicts have the legal right to challenge a lower court’s verdict in the High Court; and then the Supreme Court, which is the top-most court. 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.

The ultimate resort, after the apex court dismisses the curative petition, 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.

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

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, under the prison rules, if death sentence has been awarded to more than one person in a case and if one of them moves a mercy plea, the execution of the others too has to be postponed till the plea is decided.

When the Delhi government informed the aforementioned law to the court, a bench of Justices Manmohan and Sangita Dhingra Sehgal retorted saying, "Then your rule is bad if you cannot take action till all the co-convicts have moved a mercy plea. It seems there has been non-application of mind (while framing the rules). The system is suffering from cancer."

The prison authorities said that under the rules, they will have to wait for the mercy plea to be decided before executing the death warrant.

Where does that leave Nirbhaya’s case?

As of now, the order to hang the convicts on January 22 has been stayed. The Delhi government has already rejected the mercy petition, and forwarded it to Lt Governor Anil Baijal.

Baijal had again recommended that the mercy petition be rejected, and forwarded his plea to the Union Ministry of Home Affairs (MHA), which then sent it to the President of India, who has rejected Mukesh Kumar Singh's mercy plea.

Last year, President Ram Nath Kovind had said there should be "no mercy for rapists", adding that these kind of crimes "shock the whole nation". He had said, "I recommended that there should be an amendment in the Constitution with regard to mercy petition. In my opinion, people convicted under POCSO Act should not be allowed to come under the ambit of mercy petition."

An MHA official told PTI, “The Home Ministry has received the mercy petition from the LG recommending its rejection. The petition is being examined and an appropriate decision will be taken soon."

Meanwhile, a Delhi court has asked the Tihar Jail authorities to file a report by January 17 about the status of the scheduled execution of the convicts.

Can the courts intervene?

Supreme Court advocate Anuja Trehan Kapur told Moneycontrol that once the mercy plea has been filed, the courts cannot intervene in the matter. Asserting that a mercy plea is “a legal right and not a fundamental right”, she said that the President could ask the remaining three convicts to file their mercy pleas in a specific time duration so as to prevent further delay.