Mar 24,2020 | 15 min read

Deferring Execution Of The Nirbhaya Case Convicts - What The Law States

Author - Rashi Suri (Managing Partner) and Pradyun (Associate)

The mercy plea filed by one of the four convicts in the 2012 Delhi bus gangrape case was recently rejected by the President. The delay in the execution of the court order is because of the convicts individually exhausting all remedies and legal options.   

Appeal Post-Conviction 

When a trial court awards a death sentence which is to be on the ground of “rarest of the rare1 case, the sentence so passed has to be referred to the High Court for its confirmation. Only after the High Court gives its confirmation can a warrant of execution be issued for hanging a convict. 

The convict’s option at that time would be to approach the Supreme Court by challenging the High Court and the trial court’s order. The Supreme Court will go in length of the lower court’s decision along with the merits of it. If the Supreme Court upholds the decision pronouncing capital punishment, the convict may then prefer a review petition before the Supreme Court, and if the same is also rejected then the convict has the option of filing a curative petition2.

In case the curative petition has also been dismissed by the Supreme Court, the convict can then choose to file a mercy petition before the President under Article 72 (1) of the Constitution of India. Such a petition will be perused and considered through a process involving a sanction from the Home Ministry and a recommendation from the relevant state government. 

Based on the above, the President may choose to either pardon, reprieve, respite, remit or commute the sentence or may choose to reject the plea altogether.

The President’s above stated pardoning power is subject to judicial review and if the convict is not granted a pardon, then he may again approach the Supreme Court by way of a petition questioning the legality of the President’s decision in rejecting his mercy petition. The due consideration and disposal of the convict’s petition finally ends the process of appeal and challenge, after which execution of the death sentence will be lawfully carried out.

A convict will therefore have four separate petitions available to him even after the Supreme Court has upheld the pronouncement of death penalty in his case. So, while a death warrant is issued when the High Court has confirmed the sentence, the same may not be executed until all the above stated legal remedies have been exhausted by the convict.

Other Safeguards

In the matter of Harbans Singh Vs. State of UP & Others, the Supreme Court was shocked to find glaring inconsistency in the legal process, wherein the fate of three convicts to whom the capital punishment was given for committing the same offence had ended up suffering different punishments due to separate legal processes being followed for each convict. The legal lacuna led to one convict being hanged and the other one getting the sentence commuted. In order to ensure the situation does not persist or gets repeated, the Supreme Court laid down the standard that “convicts in the same crime must be executed together”.

Therefore, even if any one of the co-convict’s petition or appeal is sub-judice or pending before the court, the rest of the co-convicts by default will be protected, by having a stay on their execution. The four convicts in the Nirbhaya case have invoked this very legal shelter to secure a stay and extension. Consequently, the four individual petitions available to them after confirmation of the sentence by the Supreme Court has become 16 in total, four for each one of them, to be employed one after the other.

On March 20th, 2020, after failing all legal maneuvers and measures employed by the convict’s lawyers to delay the capital punishment, the tihar jail at Delhi following its elaborate sop’s (standard operating procedures) hanged the four convicts in an early morning execution of their sentence, thereby concluding a lengthy trial and an appeal process.

1 The Supreme Court laid down the doctrine in Bachan Singh v State of Punjab (1980)
2 The concept of curative petition was first evolved in 2002 by the Supreme Court in Rupa Ashok Hurra Vs. Ashok Hurra and Anr.

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Rashi Suri

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