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Nirbhaya rapist Mukesh’s lawyer trying to further defer the execution: Know the legality

Having done the analysis of counsel-side and court-side delays, it concludes that 82% of all delays could be attributed to lawyers and not the judges per se.

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Aastha Tiwari
BA.LLB, LLM

In another preposterous attempt to save the rapists of Nirbhaya from the death penalty, Advocate ML Sharma, on March 6, 2020, claimed that his client Mukesh must be given a chance to restore his legal remedy (curative petition). He said the limitation period to file a curative petition was three years from the date of dismissal of the review plea and therefore he still has till 2021 to file the petition.

The concept of limitation is simple- you cannot be given forever to file a case, there should be an end to litigation. If you have a just cause, come to the court within a time frame. Don’t sleep over your right! Therefore, Schedule given under the Limitation Act provides for the time period within which filing of any suit/appeal/application is permissible. It is important because if there is no time frame within which the suit or application can be filed, the case will go on for ages. He is relying on Article 137 of schedule given under The Limitation Act which states that for any application for which no period of limitation is provided in the Act, the limitation of such application is three years from the date when the right to apply accrues (in this case dismissal of the review petition).

Therefore, Mukesh Singh through his lawyer is now asking the court to “restore” the rights available to him, and allow him to file curative and mercy petitions till July 2021 (after 3 years from 2018 when his review petition was rejected). What he, unfortunately, forgot to refer was the Handbook on Practice and Procedure and Office Procedure of the Supreme Court of India that explains in detail the procedure and requisites that shall be fulfilled for filing a curative petition.

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Read: Lawyers of Nirbhaya’s rapists have been using the loopholes in the law to defeat the purpose of law. Read How

The handbook, apart from stating other important points related to the curative petition also specifically mentions that it shall not be governed by the provisions of The Limitations Act, 1963. Which means the law on which the defence lawyer is relying upon is not applicable in this particular case. The handbook, however, mentions that the same must be filed within a reasonable time from the date of the judgment. Now, it is a trite law that reasonableness is a ‘question of fact’, meaning thereby that it will depend upon the facts of the case to decide the time frame under which curative petition can be filed. In the present case, everything that had to be done has already been done. The saga has been going on since the last 8 years. The convicts were given chances time and again to prove their case. Court, just to make sure that their right of being heard is not violated, kept postponing the dates.

Sometimes the convict is not mentally fit, sometimes his lawyer is not available. Everyone knows that there is no legality in their claims. The defence lawyer is not only ‘creating’ the loopholes in the law, a law which is well established but also maligning the image of the amicus curie without any basis. He claims that Vrinda Grover “falsely” informed him that Mukesh had to file a curative petition within 7 days of the death warrant on January 7. This argument holds no water for two reasons, first being that, as per the order passed by the Delhi High court on Feb 5, 2020, all four convicts in the Nirbhaya gangrape-murder case have been directed to avail all their legal remedies within the next seven days. Second, is that all the petitions have been entertained and decided by the courts on merits. Filing the petition again on the same grounds is defeating the purpose of curative petition i.e. “to meet the ends of justice”. Unfortunately, the one who should be protecting the law is abusing it. As per a study, in 91% of delayed cases, it was lawyers who sought more time as compared to a much lower 36% in cases that were disposed of in time.

Having done the analysis of counsel-side and court-side delays, it concludes that 82% of all delays could be attributed to lawyers and not the judges per se. It is time that our Supreme court take strict actions against those who are deliberately trying to twist the law as per their own convenience.

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Aastha Tiwari
BA.LLB, LLM

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