In the case of Nirbhaya, who was gang-raped and tortured in a way that led to her death, after the announcement of the death sentence of the convicts, the lay got an impression that justice was delayed but not denied. But the date of executing the convicts on death row still changed from 22 January to 1 February. A case referred to as Harbans Singh versus Uttar Pradesh that began in 1977 and concluded in 1982 may help explain why the judiciary is delaying what appears inevitable.
But whatever be the reasons of jurisprudence, it is understandable that Nirbhaya’s mother Asha Devi has vented her anger on the “attempt to save the culprits” from hanging, which the highest court of the country had ordered long ago. Technically, nobody is trying to save the four convicts. But long ago, the Supreme Court had decided that unless all the guilty of a given case of crime exhaust all their legal options, none will be hanged. In the event of the president rejecting the clemency plea of each or otherwise, the same punishment will be accorded to all.
The case of Nirbhaya cannot be compared to that of Yakub Memon who had appealed to the court even after the rejection of his plea for a presidential pardon. Here, more than one convict for the given crime are to be executed to their punishment is going to be commuted to life imprisonment whereas Memon’s crime was unique and his accomplices had not been held guilty under the same sections.
As yet in the case of Nirbhaya, the president has rejected Mukesh Singh’s clemency plea. The other three convicts have not yet appealed for clemency. The Supreme Court has dismissed the curative petitions of two convicts: Mukesh and Vinay. Two other convicts have not exhausted this option.
Law experts say there is no law on whether in cases like Nirbhaya’s all convicts found guilty of the same crime must be executed together. However, in a 1982 judgment, the Supreme Court held that if all the convicts had been punished for the same crime, all of them should be hanged together.
In the case Harbans Singh vs Uttar Pradesh, the three guilty were convicted of killing four people in 1977. This case went from the lower court to the Supreme Court. All the convicts filed appeals at different times.
The Supreme Court upheld the death sentence of one of the convicts; he was hanged. When the second convict moved the apex court, the hearing went to a separate bench that changed his death sentence to life imprisonment. When the third convict Harbans Singh reached the highest court, his plea was dismissed. Later, the president of the time rejected his clemency plea too. When the convict reached the Supreme Court again, he asked how could three people guilty of one given crime be punished differently wherein one convict had been hanged and another had been imprisoned for life.
The Supreme Court admitted there was a mistake somewhere. But the convict who had been hanged could not be made to live again. The court then decided to be extra cautious in awarding death sentences to a bunch of convicts.
The Supreme Court did not pronounce a sentence against Harbans Singh. It requested the president to consider his clemency plea. Since then, a group held guilty for a given crime are not hanged one by one. The criminal justice system waits until the entire bunch exhausts all legal options. Then they are hanged on one day.