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Friday 5 June 2020

Why Nirbhaya case convicts cannot be hanged on 1 February

The Tihar Jail authority said in the Supreme Court today it was ready to hang all convicts, but three out of four have not exhausted options

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Whether the four criminals convicted of raping paramedic student ‘Nirbhaya’ in December 2012 will be hanged tomorrow is still not certain. Convict Pawan Gupta has again moved the Supreme Court. He has filed a review petition against the apex court’s dismissal of his plea that he was a minor at the time of the crime. He has also demanded cancellation of the death warrant against him.

Gupta filed the review petition in the Supreme Court on 20 January, the day his plea claiming he was a minor at the time of the offence was rejected. He still has two options: curative petition and mercy petition.

The Patiala House Court heard the plea of ​​Vinay Sharma, another criminal convicted in the Nirbhaya gang rape and murder case.

When the counsel for the convicts said that the court must put a stay on the death warrant, the prosecution objected to the appearance of Mukesh Singh’s lawyer Vrinda Grover, saying that all petitions of Singh had been dismissed. The judge expressed his displeasure at the arguments.

The Tihar Jail authority told Patiala House since Vinay Sharma’s mercy petition was pending, the petition to cancel his death warrant was premature. According to the jail, no appeal or application was pending as of 31 January. While Sharma’s mercy petition is pending, the plea of ​​the remaining convicts was not pending. The mercy petition of Vinay can wait while the remaining three convicts can be hanged, the jail authority said, adding it was not against any law or rule.

The counsel for the Nirbhaya case convicts said that was not true. The lawyer said the review petition of Gupta was pending in the Supreme Court.

Yesterday, the Supreme Court had rejected Akshay Thakur’s curative petition. The convicts’ counsel said they would plead for a presidential pardon on getting the order. The advocate said, “The jail manual says if the plea of ​​one convict is pending, the rest cannot be hanged.”

The convict’s lawyer AP Singh said Vinay’s mercy petition was pending. According to a Supreme Court verdict, a convict gets 14 days after his mercy petition is dismissed. Therefore, no one can be hanged, the lawyer said and asked for a new date. Singh said no one could be hanged on Saturday. He asked for a stay on the death warrants until the president decides on the mercy petition.

The parents of Nirbhaya and their lawyer objected to Grover’s appearance. But the court permitted Vrinda to argue her case. She said there were delays (in the execution) due to loopholes in the law. “I got a chance in the case after a long time. I tried not to delay (the process), so the pleas were made by the convict Mukesh Singh,” she said.

Grover submitted before the court that the convicts could not be hanged separately. The Supreme Court had reached the same conclusion after the case Harbans Singh versus Uttar Pradesh that began in 1977 and concluded in 1982, with the apex court caught in a moral dilemma when the third convict of a group crime had argued that, out of the two before him, one had been hanged and the other sentenced to life, as though the court were not functioning under a standard of laws but a judge’s personal whims.

Grover said the jail administration had not mentioned the curative petition in the manual although this legal remedy was available to the convicts. A clemency plea is pending, the lawyer reminded, which is with the constitutional authority, the president. “No one can say when he will decide. Other convicts have other legal remedies left. So the hanging of all the culprits together should be avoided,” she said.

Grover added that the mercy petition of one convict could be different from that of another while the execution order had been issued through a single order. With the mercy petition of a convict pending, she argued, the hanging should be postponed as the execution of one should not be different from that of the others.

Execution is an irreversible process, the lawyer said, the loss of life cannot be undone. There will be no recourse if different punishments are given for one given crime, she argued.

She further asked if the sentence of Vinay Sharma’s hanging were to be commuted to life imprisonment, which could not be prejudged at this moment, what would happen to those hanged already.

In cases of capital punishment, the Supreme Court is ready to consider making a victim-centric guideline following an application from the Ministry of Home Affairs. The court has issued a notice and sought an answer from the government as to what guideline that ought to be. Solicitor-General Tushar Mehta told the Supreme Court it could follow the precedent set by its verdict in the Shatrughan Chauhan case. The Supreme Court had stipulated in that case on 14 January 2014 that a convict must be given 14 days between the rejection of his mercy plea and his execution to make “peace with God” and accept his fate.

CJI SA Bobde asked the solicitor-general who he represented. Mehta said the central government. The CJI said that there was a law to protect the rights of the victims. The SG said that a convict on death row went through a trial court, a high court and the Supreme Court and a review petition after that in the apex court again, but these convicts were taking advantage of a loophole.

The Supreme Court will now consider whether or not to hang more than one convict in one given case like that of Nirbhaya separately and set a time limit for the convicts’ exercising of their legal and constitutional options.

The lawyer of Nirbhaya’s family said, “They are dragging the case. When there is only one case, why are these convicts filing different petitions?” Nirbhaya’s lawyer Seema Kushwaha said all the culprits had tried to stretch the Nirbhaya case and were still doing the same. “These people did not file any petition until the Patiala House Court issued a death warrant in this case,” she said.

Nirbhaya’s lawyer said in the court that the rule held that the jail administration would send a message to the government in this regard and ask if the hanging should be stopped. If no answer is received, the hanging can be stopped. There is no need for a court order for this, she argued.

The court told Singh that he must complete his arguments as the execution is slated for tomorrow (1 February) at 6 AM. The court said it had to issue an order today. “Either defend yourself or the guilty,” the court remarked.

The Tihar Jail authority said, “There is no end to it. It must stop somewhere. Three convicts can be hanged tomorrow.”

The Supreme Court reserved the verdict and the judge said it could not be said how much time the verdict could take. It would be done by the evening. All parties should remain in court.

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