The tortuous delay in hanging Akshay Thakur, Mukesh Singh, Pawan Gupta and Vinay Sharma, convicted of brutally raping Nirbhaya on 16 December 2012, calls for a reform in India’s judicial procedure dealing with capital punishment for a heinous crime committed by a group. Unlike the Dhananjay Chatterjee case, here rape was committed by six people. The trial of the tormentors of Nirbhaya is different from those where terrorists were hanged too, as, after hanging two assassins of Indira Gandhi together, there came a case some years later that embarrassed the Supreme Court. Going by the precedence set by that case — Harbans Singh vs State of Uttar Pradesh — the courts were unable to order the hanging of the four convicts one by one, as and when one of them exhausted his option. Here is how the procedure must change to spare society the frustration of seeing malcontents enjoy the compassion of the state.
Keep it simple and linear. The first step in the appellate jurisdiction process is the trial court. If that was the fast-track court in Saket in the case of Nirbhaya, why should the Patiala House Court have a say in the matter? From Saket, the case should have gone straight to the Delhi High Court, which ought to be the second step. In the case where the verdict of the lower court (fast-track or district and sessions court, not both) is upheld, and the convict appeals again, the third step is the Supreme Court. If those convicted of the crime want to beg for mercy, the fourth step, the President of India, must be the final one, and the fifth could only be the execution of the convicts.
After the third step, give one week to the convicts file a curative petition. This option must turn void if the petition is not filed within a week of the verdict. Unlike a curative petition that says some part of the evidence or eyewitness account might have slipped the judges’ attention, a mercy petition is an acceptance of guilt and yet a pleading by the guilty to spare them. If the president rejects this plea, challenging it should not be allowed, but they were in the case of Nirbhaya. Further, between Steps 3 and 4, there is no need to route the clemency application of the convict through the state government and the Union Ministry of Home Affairs. Since the Supreme Court pronounced the judgment to hang the monsters in the Nirbhaya case, the AAP government in Delhi unduly sat on the file for two years, pushing it to the Ministry of Home Affairs not before the end of 2019. Without politicising the issue, it can still be asked why the Indian system allowed this in the first place. While under Article 72 of the Constitution of India, the president does not enjoy this discretion, the intervention of the home ministry may be required only in cases like that of a terror attack. For, the government may want to weigh in the repercussions. There is no need for government intervention in matters such as rape or gruesome murder not amounting to terrorism (an act of violence where the intention of the guilty was to terrorise the state into accepting his political demand). Routing the file of persons convicted of a gang-rape through the state government is ridiculous. Let the President of India handle such cases without the advice of the two governments. There too, the person in that office should not be entitled to do anything other than commute the death penalty to life imprisonment. In fact, Dhananjay Chatterjee, who was later found to have been tried under circumstances that were unfair to the poor man, deserved this consideration from then president APJ Abdul Kalam but did not get it due to a misled, as well as misleading, campaign by the wife of then Bengal Chief Minister Buddhadeb Bhattacharjee, which must have affected the view of the MHA.
The Supreme Court must be denied the right to entertain a challenge thrown at the rejection of the presidential pardon. More importantly, once the case goes to the Supreme Court and beyond, the high court and the trial court should not have a say in it. In the case of Nirbhaya, the Delhi High Court and the Patiala House Court are more to blame for the delay in the execution. If the Supreme Court has delayed the hanging for one month; the lower courts have delayed it by two. But again, the collective despair of society is not a pressure on the conscience of courts. We must ask why the state made this the standard procedure of appellate jurisdiction in cases of group crimes.