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

There is no deterrence, there is no regret in the minds of criminals. It only epitomizes the maxim- ‘Justice delayed is justice denied.’

The 23-year-old physiotherapy intern, who is known as “Nirbhaya” was gang-raped and savagely assaulted by six men (5 adult and one juvenile) on the night of December 16, 2012 in a moving bus in South Delhi. She succumbed to her injuries and died a fortnight later in a Singapore hospital.  While the trial court gave the death penalty to all the five adults, the juvenile was sent to probation home for 3 years. One of them committed suicide in the jail, rest preferred appeal in the High court and subsequently to the Supreme Court. The court rejected the appeal and upheld the death penalty stating that it falls under the category of “rarest of rare” case. Till date, the execution of the convict has been postponed three times. Following are the ways through which the convicts are making attempts to escape the noose.

Review Petition

Review Petition as provided in Art. 137 of Constitution of India allows the Supreme Court itself to review or revisit its own decision or judgment given earlier in any case. This is available after the remedy of appeal is exhausted. It is a discretionary power but the scope of exercise of the discretion is restrictive. In July 2018, the Supreme Court rejected the review petition of three convicts. In December 2019, Akshay(the fourth convict) moves the supreme court for review, which the court dismissed within a week. This remedy is over for all four of them.

Curative Petition

A curative petition is nowhere written in the constitution. The concept evolved in 2002 in the case of Rupa Hurra v Ashok Hurra. Its scope is very narrow and the court has to be satisfied that there would be a grave injustice if the verdict is implemented. So far, the curative petition has been made by Vinay, Mukesh and Akshay and the same have been rejected by the court. The only person who had not yet filed a curative petition was Pawan. He was supposed to be hanged with the other three on 3rd March but the hanging had to be postponed until further orders after he filed a curative petition in the Supreme Court.

Mercy Petition

Under Article 72 and 161 of the Constitution of India, the President and the governor respectively have the power to “grant pardons, reprieves, respites or remissions” of punishment awarded by the courts. However, the power to grant pardon in case of death can only be given by the president. In Epuru Sudhakar & Anr. v. Govt. of A.P. & Ors.,2006SCthe court held that Judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds-(a) that the order has been passed without application of mind; (b) that the order is mala fide; (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials have been kept out of consideration;(e) that the order suffers from arbitrariness”. Taking advantage of this, defence lawyer AP Singh has challenged the mercy petition on the ground that it was based on extraneous consideration as also malafide, arbitrary and without material. Mercy petitions of Mukesh, Pawan an Vinay have been made and rejected. Akshay’s petition is still pending. The option of Review of mercy petition is still left with Vinay, Pawan and Akshay. This give convicts another chance to procrastinate the process.

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Since convicts were yet to exhaust all their legal remedies, the trial court postponed execution of death warrant until further orders. On Feb 1, 2020 Centre moved High Court against the trial court, which the high court dismissed stating that all the accused to be hanged together. According to conventions and guidelines laid by the Supreme Court in Harbans Singh,1982 all convicts must be hanged together if they are convicted in same case and crime. It directed all the accused to pursue all remedy within 7 days, failing which action will be taken in accordance with law. The court called it a ‘delay tactics’ adopted by the convicts. The High court observed, “all the authorities concerned were sleeping and waited till December 2019 for reasons best known to them to seek issuance of death warrant”, and hinted the inefficiency of the Delhi Government. The court said that The Delhi Government moved the trial court for issuance of death warrant two years after the Supreme Court in 2017 had dismissed the review petition against death penalty.

The tihar jail authorities filed a status report on March 3,2020 before trial court stating that no legal option was preferred by any convict in last seven days period granted by the Delhi High Court. Finally, On 4thMarch, 2020 President rejected the mercy petition of Pawan Gupta, the last convict to file mercy petition. This comes after the trial court on Monday stayed for the third time the death sentence of four convicts. On 5thMarch,2020 Delhi court issued fresh death warrants for execution of the four convicts for March 20.

In a 2014 Judgement the constitutional bench of the supreme court laid down the guidelines including that the death row prisoner must be given a minimum of 14 days’ notice to prepare himself mentally for the hanging, after rejection of mercy petition.

These four convicts have another case pending against them (robbery/dacoity). Unless the appeals of the convicts are not decided by the Delhi High Court, they can’t be hanged to death. In August 2015, the trial court had held the death row convicts guilty of robbery of one carpenter named Ram Aadhar.

The Physical and mental health of the death row prisoner must also be taken into consideration before the execution and the convict should be hanged only if prison officials are satisfied that they are healthy. Delhi Court however has dismissed convict Vinay Sharma’s plea for medical treatment. The counsel is making attempts to prove that the convict is not in a fit state and therefore cannot be hanged. The court however took note of the medical reports filed by the medical officers at Tihar Jail, including the Psychiatrist, who said that “no objective sighs of psychological distress was observed.”

In another landmark judgement Supreme Court in 2014 ruled that unexplained delay in execution can be a ground to commute death penalty. Inordinate delays in deciding mercy petition can also be a ground for courts to commute the sentence. The execution has been delayed for months already. The attempt of the defence lawyer is to use this delay the process and use this 2014 case as a shield against death penalty. Further he is relying heavily upon the earlier supreme court precedents where court, despite having a rarest of rare case, not granted death penalty.

Role of the defence lawyer

Additional Sessions Judge Dharmendra rana told defence lawyer AP Singh,” You are playing with fire. You should be conscious. One wrong move by anybody, and you know the consequences.” The defence lawyer has been infamous for his misogynistic remarks that he made in 2012 when he said “ If my daughter or sister engaged in premarital sex and disgraced herself and allowed herself to lose face and character by doing such things, I would most certainly take this sort of sister or daughter to my farmhouse, and in front of my entire family, I would put petrol on her and set her on fire,”. In 2013, the BCI chairman had issued a show cause notice to AP Singh for his statements after having reportedly received a complaint of professional misconduct under the Advocates act, however nothing is known about the progress of the show cause notice yet. It is no doubt AP Singh’s constitutional obligation to make sure that convicts are able to avail all the legal remedies available to them. He is at full liberty to decide whom to fight for.

But what he is not expected to do is to use loopholes in the law to defeat the purpose of law. The guilt of the convicts has been proven beyond reasonable doubt; the counsel knows what his clients have done. Despite all this, he is deliberately procrastinating the process by taking advantage of the procedural inadequacies. In the garb of protecting the rights of his clients, he is manipulating both law and fact, blaming victim for getting out of her home at odd hours and going against the ‘societal norms’, questioning the intentions of the judge, reagitate the juvenility issue once the same has been decided by the court. He cannot, as a responsible citizen and a member of legal fraternity cannot play hide and seek with court despite several communications sent to him on the behalf of court. Lawyers like AK Singh shake societal conscience, they create wrong precedents for the criminals and empower them to commit crime. There is no deterrence, there is no regret in the minds of criminals. It only epitomizes the maxim- ‘Justice delayed is justice denied.’

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Aastha Tiwari
BA.LLB, LLM

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