The wait for justice in the Nirbhaya gang-rape case has extended further even as a Delhi Court has indefinitely postponed the execution of the death sentences of the four convicts, after they sought a stay on their hanging that was supposed to take place on February 1 at 6 AM.
Exploiting a loophole in the system, the convicts and their lawyers are strategically using legal remedies available to them to delay the execution till as long as possible even as the mother of Nirbhaya cries her eyes out for justice delayed and hence denied for seven years already.
All legal remedies, including judicial review of mercy petition, of one of the death row convicts, Mukesh Singh have been exhausted. The mercy petition of another convict, Vinay Sharma is pending, while the curative petition of Akshay Kumar Singh, one of the four convicts was recently junked.
In fact, Pawan Gupta, who is another convict in the case has not even filed his curative petition till now. But according to the law, none of the convicts can be hanged until all of them have exhausted all their legal remedies.
What this in effect means is that even Mukesh Singh, who has already availed all his remedies, cannot be executed till Pawan Gupta exhausts every possible remedy, including mercy petition and its judicial review.
Meanwhile, the mother of the victim of the brutal gang rape and murder, which had shaken the conscience of the entire country, had expressed agony and pain at the present state of affairs.
She said that her “hopes are dashed” but she would continue fighting till the four convicts are executed. She said, “These convicts have no right to live. We keep getting disappointed by the system. I will continue my fight till the convicts are hanged.”
The successive deferments in the death sentence of the four convicts have indeed been traumatic for the country as whole, and the victim’s parents in particular.
While the agony caused by the indefinite delay needs no articulation, it is important to understand what loopholes are causing this delay.
First of all, it seems clear that the four death row convicts are adopting dilatory tactics. They know they cannot be hanged individually and that is why they have spread out their legal remedies over a long period of time. None of the curative or mercy petitions were filed together, and one of them is yet to file his curative petition.
It seems that the said convict, Pawan Gupta will delay it for as long as he can so that the death penalty can be pushed ahead as long as possible. This cannot be merely coincidental. The four convicts are clearly abusing the process of law. Meanwhile, the mother of the victim, having rushed from pillar to post for seven years for justice, continues to face elements that are more concerned for the lives of the rapists and murderers than justice for the women of India.
— Raj Shekhar Jha (@rajshekharTOI) January 31, 2020
It must be noted that the trial against two or more convicts committing an offence starts together. The appeals are also preferred together. Even for appealing before the Supreme Court, there is a set time period and the Supreme Court Rules, 2013 also provide a time period of thirty days to apply for Review of its verdict.
The real issue arises at the stage of Curative Petition. The Supreme Court Rules, 2013 mandate filing the Curative Petition within “reasonable time” of the date of Judgment or Decree passed in the Review Petition.
Therefore, in cases like the present one, the death row convicts might use the ambiguity in the Rules to tactically push the execution of death sentence further. In case of several co-convicts the requirement of taking recourse within “reasonable time” also becomes an excuse to spread the time period over which all remedies are availed.
Not only the Curative Petitions, but the Mercy Petitions too are largely unregulated. In fact, there is no time period within which the mercy petition ought to be filed after the communication of rejection of Curative Petition.
Again, the convicts get an opportunity of postponing the execution when it is actually around the corner. All such dilatory tactics are at play in the Nirbhaya case, exposing the loopholes in the present system.
In availing any legal remedy, whether civil or criminal, a time limit is always provided. Generally, if a remedy is out of the period of limitations, it gets barred. The policy of the law is to avoid delay.
In such circumstances, it is beyond comprehension why a strict time limit should not be imposed upon the death row convicts as well. By not prescribing any time limit, they are being allowed to circumvent the system and abuse the process of law.
A time limit must be imposed by the Supreme Court within which the death row convicts can file the Curative Petition, and a time limit should also be placed on the period within which they must file Mercy petitions.
This will also resolve the issue of different co-convicts deliberately pushing ahead the date of execution by filing multiple, successive Curative and Mercy Petitions. Since, the Petitions would be heard and decided at around the same time, the issue of several co-convicts together delaying the execution of death sentences would become highly improbable.
If they fail to abide by the time limit, they should be sent to the gallows. Fortunately, we already seem to be moving in the right direction as the Union Home Ministry has sought guidelines from the apex court on exactly the aforementioned lines.
Named India’s daughter, Nirbhaya, 23-year-old victim was brutally gangraped and tortured on December 16, 2012, which later led to her death. All six accused were arrested and charged with sexual assault and murder. One of the accused was a minor and appeared before a juvenile justice court, while another accused committed suicide in Tihar Jail.
The Nirbhaya case has become an example of how brutal and inhuman death row convicts can take the entire system for a ride on account of the existing loopholes. The Union Home Ministry seems to have realised how dilatory tactics are being adopted, and has therefore brought a critical issue before the apex court.
One can only hope that necessary modifications will now be carried out so that no such brutal convicts can deliberately delay execution of death sentences by adopting dilatory tactics.