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Nirbhaya Case- Balancing the scales of Justice

On December 16, 2012, there occurred a horrendous incident, in Delhi, which shook the conscience of the whole nation. 5 men and 1 juvenile committed the heinous crime of gang rape on a 23 years old physiotherapist trainee, Nirbhaya (name changed in order to protect the identity of the victim in sexual offences) [1], marking it as the black day of the decade for the nation. This led to widespread anger throughout the nation leading to extensive protests demanding justice for the girl because Nirbhaya was critical and wasn't responding well to the treatment administered to her and under the pressure created by the protests, the Union government rushed the victim for treatment to Mount Elizabeth Hospital in Singapore, whereinafter she succumbed to her injuries. All the 6 accused namely Ram Singh(aged about 33 years), Pawan Gupta (aged about 19 years), Vinay Sharma(aged about 21 years), Mukesh(aged about 26 years), AkshayKumar Singh (aged about 28 years) and one minor, were arrested and brought before the court.

The chronology of the events that followed thereafter is as follows: -

- 31st August 2013 - The Juvenile Justice Board sent the minor to a reform facility.
- 13th September, 2013 - The trial court awarded death sentence to the remaining 4 accused.
- 13th March, 2014 - The Delhi High court upheld the decision of the trial court conforming death penalty.
- 20 December, 2015 - The Minor who served three years in a reform facility was released.
- 5th May, 2017 - The Supreme Court also upholds the decision of the high court.
- 9th July, 2018 - Supreme Court dismisses the Review plea filed by Mukesh, Pawan & Vinay.

A bench headed by Justice Madan B. Lokur and Justice Deepak Gupta while hearing a batch of petitions filed after the barbaric crime of gang rape and murder on December 16, 2012 in New Delhi to support the initiatives on women's safety across the country, laid down the rule that 'No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large. The bar extends to anything which can even remotely be used to identify the victim,'

- February, 2019 - Victim's parents move the Delhi High Court, to expedite the process of issuance of death warrant to the accused.

- 18th December, 2019 - Supreme court dismisses the review petition filed by Akshay.

- Thereafter the Delhi Court direct Tihar authorities to issue notice to convicts to avail their remaining legal remedies.

- January 7, 2020 - The court issues the Death Warrant and orders that the 4 convicts be hanged on January 22 at 7 am.

Advocate Vrinda Grover, who was appointed as Amicus Curiae [2] on the last date by the court to represent Mukesh, informed the court that she had interviewed the convicts in prison and perused their documents. She also submitted before the court that the jail authorities did not give complete information to the convicts in the notice issued to them in pursuance of courts last order. In these notices the authorities had informed that only remedy available to them is a mercy plea. This is misleading as the notices failed to mention curative petition as another remedy available to them.

The order of the Court on January 7, 2020 was passed after hearing the arguments on issuance of death warrants to the convicts. Chapter XXXII Section 413 of the Code of Criminal Procedure Code deals with issuance of death warrant. It says that when a case is submitted to High Court for confirmation of death sentence and the Court of Sessions receives the order of confirmation it issues a warrant or may take the steps it deems necessary.

The remedies left with the convict after the confirmation of death sentence by the High court as well as the Supreme Court is:-

i. Filling a review petition before the Supreme Court under Article 137 of the Constitution of India.
ii. Filling a Curative Petition in the Supreme Court under Article 142 of the Constitution of India. [3]
iii. Filling a mercy petition before the President under Article 72 of the Constitution of India. [4]

At the time of writing of this article Curative Petition filed by two of the accused namely Vinay Sharma and Mukesh has been rejected by Supreme Court on the grounds that the instant case doesn't meet the tests laid down by Supreme Court in Rupa Hurra vs Ashok Hurra Case. While the option of filing Curative petition is still open to remaining two convicts namely Akshay Kumar Singh and Pawan Gupta. On January 15, 2020 Delhi High Court bench comprising of J. Manmohan and J. Sangita Dhingra Sehgal heard convict Mukesh Kumar's plea on setting aside Death Warrant order issued by Delhi Court on January 7th, 2020. The petition drafted by Advocate Vrinda Grover, amicus curie in the case, seeks stay on Death Warrant on the grounds that Mukesh has already filed Mercy petitions with Lt. Governor of Delhi and President of India and execution of death warrant will make his constitutional remedies infructuous. The court opined that there was no error in the trial courts order issuing death warrant and passed the judgement stating that"If the petitioner is of the opinion that the date of execution mentioned in the impugned order needs to be set aside in view of any subsequent event, then he must approach the court that passed the impugned order."

So, despite the brouhaha around the death warrant issued for 22nd January, 7 a.m. It seemed imminent to jurists that the convicts may not be hung on 22nd January by virtue of automatic stay granted by proviso to Rule 14 of Delhi Prisons (Treatment Of Convicts Sentenced To Simple Imprisonment, Death, Female Prisoners, Youthful Prisoners, Leper Prisoners And Lunatic Prisoners) Rules, 1988. [5]

However, they got time to file their Mercy pleas with the President of India under Article 72 of the Indian Constitution, i.e. the last constitutional remedy that was left open to the convicts of Nirbhaya Gang Rape Case, three of the convicts namely Mukesh, Akshay and Vinay have already availed the remedy, fourth convict Pawan Gupta is yet to exercise his right and avail the aforesaid remedy.

Another development in the case came on January 17, when the execution order of 22nd January stayed. On the same day, the mercy plea of Mukesh was rejected by the President Ram Nath Kovind, the appeal against such rejection was also dismissed by the Supreme Court on January 29, 2020. The trial court reissued‘black warrants' for the second time for the execution of all the four convicts in Tihar jail at 6 am on February 1, 2020.

On January 31st, 2020, Tihar Jail Authorities vehemently opposed the application filed by the counsel for convicts, seeking adjournment of the executions. However, ASJ Dharmender Rana after hearing the arguments, passed the order, that the execution of warrants issued on Jan. 17, 2020 deserves to be postponed 'sine die.' [6]

The said order was challenged in the Delhi High Court by the Central and Delhi government through Lt. Governor, on the ground that the Delhi Prison Rules 2018 does not prohibit the consecutive execution of the death sentence of co-convicts, upon rejection of their respective mercy petitions. It was argued that deferring the execution of the death sentence of all the four convicts, specifically when Mukesh's mercy plea had been dismissed by the President, will lead to 'gross miscarriage of justice' to the victim's family as well as society as a whole.

On February 05, 2020, Justice Suresh Kumar Kait refused to accept the Centre's contention and held that 'Since up to the Supreme Court, their fate has been decided by a common order and judgment, therefore, in view of the facts, I am of the considered view that death warrants of all the convicts be executed together but not separately.' The Court also clarified that as per the Prison Rules,if the appeal or application of one of the convicts is pending, the death sentence of all the convicts shall be postponed till the order on the appeal/application comes. It is also mentioned in the proviso [7] that if a petition for mercy has been submitted, the execution of the sentence shall further be postponed pending the orders of the President thereon and also highlighted that it is nowhere mentioned in the proviso that if mercy petition of one convict is pending, the death sentence of other co-convicts will be executed.

Another recent order of the Supreme Court passed on February 11, 2020, by the 3-judge bench, headed by Justices R.Banumathi, Ashok Bhushan andA. S. Bopanna, while seeking response from the convicts against the Central government's challenge, saidthat the pendency of the appeal filed by the Centre and Delhi government before it would not be an impediment for the trial court in issuing fresh date for execution of the convicts.And therefore, granted liberty to the authorities to approach the trial court for issuance of fresh date for the execution.

The whole journey of this case clearly shows that even the damned getthe right to be heard in this mighty democracy of ours. Doesn't matter how many might outpour their outrage over the convicts not being hanged quickly enough. Even today, i.e. 12 February, 2020, the court granted an opportunity to Pawan to choose a counsel of his choice from the list of empanelled advocates with the Delhi State Legal Services Authority, after the intimation by Advocate AP Singh that he would not represent convict Pawan in the Nirbhaya case anymore. While affording the said opportunity to the convict, J. Dharmendra Rana remarked, 'Let justice be done, even though heaven falls. This Court is of the opinion that any condemned convict is entitled for legal aid till his last breath. Granting the prayer made in the application without hearing counsel for convict would render further proceedings ornamental and superfluous.' And also stated that 'Even till his last breath he is entitled to Audi Alteram Partem'. [8]

This clearly shows that thevery edifice of Indian criminal justice system rests on the assertion of William Blackstone, famous English jurist, 'it is better that 10 guilty persons escape than that one innocent suffers'.


[1] Section 228A of Indian Penal Code. It deals with disclosure of identity of victims of sexual offences.

[2] Latin word meaning 'Friend of the court'. Someone who is not a party to a case and may or may not have been solicited by a party and who assists a court by offering information, expertise, or insight that has a bearing on the issues in the case; and is typically presented in the form of a brief.

[3] Curative petition is a concept that was evolved by the SC in the case of Rupa Hurra vs Ashok Hurra 2002 (4) SCC 388. The question presented before the court in this case was whether an aggrieved person is entitles to any relief against the final judgement/order of the SC after the review petition is dismissed.

Para 47 - The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers. The judgment also states that though the judges of the highest court do their best, situations may arise in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of.

Para 42 - The duty to do justice shall have to prevail over the policy of certainty of judgment in the rarest of rare cases as there may be circumstances, wherein declining to reconsider the judgment would be oppressive to judicial conscience and would continue to cause injustice. It is a very wide discretionary powers conferred on the Supreme Court, in the exercise of its jurisdiction, to pass decree or make such order as is necessary for doing complete justice in any cause or matter pending before it under Article 142 of the Constitution. In order to entertain a curative petition, the SC has laid down specific conditions:

- The petitioner will have to establish that there was a genuine violation of principles of natural justice and fear of the bias of the judge and judgement that adversely affected him.

- The petition shall state specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation.

- The curative petition must be accompanied by a certificate from a senior lawyer relating to the fulfillment of the above requirements.

- The petition has to be circulated to the three senior most judges and judges of the bench who passed the judgement affecting the petition, if available.

- If the majority of the judges on the above bench agree that the matter needs hearing, then it would be sent to the same bench (as far as possible).

- If it is found at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.

Para 64 - The exercise of this power of the Supreme Court also stands recognized by Order 47 Rule 6 of the Supreme court rules which states that nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

[4] The power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence is vested with the President of India through Article 72 of the Indian Constitution. The President does not decide on the clemency cases on his own. He is advised by the council of ministers under Article 74 and Article 163 of the constitution of Indian, even though he is not bound to act on their suggestions.

A convict under the sentence of death is allowed to file a mercy petition within a period of seven days (As per the provisions of the respective Jail Manual, in the present case,Chapter 11 of Delhi Jail Manual which deals with Delhi Prisons (Treatment Of Convicts Sentenced To Simple Imprisonment, Death, Female Prisoners, Youthful Prisoners, Leper Prisoners And Lunatic Prisoners) RulesRule 15 and 16) after the date on which the Superintendent of Jail informs him about the dismissal of the appeal or special leave to appeal by the Supreme Court.

A recent decision of the Supreme Court in January 21, 2014 in the case of Shatrughan Chauhan vs Union of India (2014) 3 SCC 1, the court has framed a number of guidelines for safeguarding the interests of death row convicts. One of the guideline states that a convict cannot be executed until at least 14 days have elapsed from the time he is informed about the fact that his mercy petition has been rejected.

[5] The proviso reads that 'if the sentence of death has been passed on more than one person in the same case, and if an appeal or an application is made by or on behalf of only one or more but not all of them, the execution of the sentence shall be postponed in the case of all such convicts and not only in the case of the convict or convicts by whom, or on whose behalf, the appeal or the application is made.'

[6] sine die - with no appointed date for resumption.

[7] Supra.

[8] Latin phrase meaning 'listen to the other side', or 'let the other side be heard as well'. It is one of the principles of Natural justice.

About the author:

Prakhar Dixit is Managing Partner, Sync Legal. Author Thanks Siddharth Singh Associate, Sync Legal for his valuable inputs.

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