November 13, 2020
On 16th December 2012,
an adolescent girl was assaulted, dehumanized, and raped by six men including a
juvenile. All the convicts raped her in a moving bus, and she died thereafter
due to cardiac arrest and multiple organ failure. This frightening incident
encouraged protests across the nation to secure women’s safety and laws to
restrain such happenings in the future. Though it was not the first instance of
gang rape in India, yet it forced the union to take reformative steps that it
had not taken before. Nirbhaya, the fearless, won the battle against her
assaulters, compelled the government to investigate into the predicament of
women’s safety in the society, revise laws related to rape and establish fast
track trial court for rape cases in India.
From time immemorial,
India continues to remain popular for its delay in disposal of cases. The
Nirbhaya case trembles the country to the core and took eight long years for
criminal proceedings to come to an end. After the issuance of the death warrant
by the trial court, the convicts have made every plausible attempt to delay the
execution of the death sentence. Thus, speedy justice and swift actions are
vital for death row offences. There is a need to scrutinize the cause behind
its delay and made reformative steps for the same. This article also suggests
some rectifying steps that can secure ultimately a better future.
Case Analysis
Name of the Case:- Mukesh & Anr v
State(NCT of Delhi) & Ors
Provisions involved
1) Indian Penal Code, 1860: Section 303.
2) The Constitution of India, 1950: Article 21, 72, 137.
1) The
Pseudonym used for a Twenty-three-year-old victim of the 2012 Delhi gang-rape
case as “Nirbhaya”.
2) On 16th December 2012, after watching a movie,
Nirbhaya and her friend were heading towards their home. While waiting for a bus,
one of the culprits convinced them to get on an off-duty bus in which six males
were already sitting including the bus driver.
3) The bus started moving in the opposite direction.
Thereafter, the men closed the doors of the moving bus.
4) The victim’s friend raised an objection after
suspecting something amiss. A drunk man started molesting the victim. By the
time, her friend got a serious blow on his head with an Iron Rod.
5) The victim was being pulled to the back seat of the
bus and the culprits including five adults and one minor constantly gang-raped
her for over an hour.
6) The victim was sexually violated beyond human
imagination. The culprits vandalized her private parts and pulled out her
intestines.
7) On 29th December 2012, she died due to cardiac
arrest and multiple organ failure.
8) All six culprits were convicted by the court. On 11 March 2013, Ram Singh, the bus driver killed himself in Tihar jail. The juvenile court ordered a minor with a punishment of 3 years imprisonment in a reformative facility. Thereafter, the trial court awarded capital punishment to other four culprits named Mukesh, Akshay, Pawan, and Vinay.
9) Execution of the death sentence took place seven years after the judgement. The table given below explains the timeline for the delay:
|
YEAR |
INCIDENT |
|
2013 |
13th
September- All the four convicts were awarded the death penalty by the fast
track court. |
|
2014 |
13th
March- Death penalty was upheld by the Delhi High Court. |
|
2017 |
5th
May- Supreme Court upheld the Death penalty. 8th
November- Review petition filed by Mukesh in the Supreme Court. 15th December- Vinay and Pawan upheld the
decision of the Supreme Court for reviewing its verdict. |
|
2018 |
9th July-
The Supreme Court rejected all three review petitions. |
|
2019 |
10th
December- Review petition filed by Akshay in the Supreme Court. 18th
December- The Supreme Court rejected Akshay’s review petition. |
|
2020 |
7th January- Execution of death warrant issued
for 22 January 2020. 8th
January- Curative petition filed by Vinay. 9th January- Curative petition filed by Mukesh. 14th January- The Court rejected both the Curative
petitions. Mercy petition filed by Mukesh. 17th
January- Execution of death warrant issued for 1st February 2020. 27th
January- Mukesh filed a Writ petition against Mercy Petition. 29th
January- Curative petition filed by Akshay, Mercy petition filed by Vinay and
the Court rejected Writ petition. 30th
January- Rejection of Curative petition. 31st
January- Mercy petition filed by Akshay. 1st
February- Rejection of Mercy petition. 5th February- Akshay’s petition dismissed. 11th
February- Vinay filed a Writ petition against Mercy Petition. 14th
February- Petition filed by Vinay dismissed. 17th
February- Execution of death warrant issued for 3rd March 2020. 28th
February- Curative Petition filed by pawan. 2nd
March- On rejection of Curative petition, pawan filed Mercy petition. 4th
March- Court rejected Pawan’s petition. 5th
March- Execution of death warrant issued for 20th March 2020. 20th
March- Execution of Capital Punishment. |
Statement of Problem
Why it took so long in the execution of the death
sentence of those convicts who brutally raped and murdered Nirbhaya?
Holding of the
court
On 19 March 2020, the
Supreme Court categorized the Nirbhaya case under the “ rarest of the rare”
case and dismissed the Mercy petition of four convicts involved in the case.
The Court further announced the death sentence of the four convicts to be
executed on 20th March 2020 at 6 a.m.
Analysis of the judgement
The Nirbhaya case is
seen as the most horrific case that created a nation-wide outrage and saw
thousands of people around the world coming out on the roads in support of
“Nirbhaya”. In ten months, all the five accused were convicted by the fast track
court. Even after convicting all the accused involved in the case, why it still
took seven years in execution of death sentence?
India continues to
remain popular among the countries that still impose Capital punishment.
However, Capital punishment is regarded to be inhumane and that’s why the
mandatory death penalty under Section 303 of IPC was
declared to be nullified.
However, it is only rendered in the “rarest of the rare” offences. The doctrine
of Rarest of the rare case emerged from the case of Bacchan v. State of
Punjab which states
that once the punishment of death sentence is executed, there is no going back
from the punishment in the case of any error. This is the rationale behind
providing various safeguards at multiple stages after the judgement of capital
punishment is imposed. The Nirbhaya case falls within the ambit of such rare
cases.[1]
However, In the Nirbhaya
case, it became a matter of distress when it took several years in the
execution of the death penalty. In cases of death row offences, there is an
urgent need for swift action and speedy justice.
The Phenomenon behind order of execution
In the Nirbhaya case, it
was seen that the convicts have used all possible tactics to delay the order of
Execution. Before execution of the death sentence, three death warrants have
been issued against the convicts, but every time the convicts availed multiple
legal remedies available to them to postpone the execution of the death
sentence. The government has also filed a petition for the individual hanging
of the convicts but it was rejected by the Delhi High Court with the
justification that the convicts have a right to life till their last breathe
under Article 21 of the Constitution. Moreover, this also raises a very
appropriate question: Is the right of the victim is acquiescent to the right of
convicts?
The Chronology behind delay in execution of capital punishment
It is anomalous to note
that a case referred to as a fast track court has taken eight years in
execution of the death penalty. After analysing the whole scenario there arises
a pertinent question: Wasn’t there any other course of action to wrap it up
early?
It is quite paradoxical
to say that the shortcomings in our legal system are perceptible. According to
the provision
of the Constitution, the
convict can file a review
petition within thirty days from the date of judgement. Respite there are cases where convict provides a
convincing reason for not filing the same within a limited period. The convicts
in the case made use of the given power to the fullest which ultimately lead to
a delay in execution of the death sentence. All the four culprits filed for
review on different dates with a long time between them.
A curative petition is
the last constitutional resort available to the convict after the dismissal of
a review petition by the Supreme court. The theory of Curative petition came
out from the case of Rupa Ashok Hurra v.
Ashok Hurra. However,
the authority to use this power is only given in the rarest of the rare case.
The point of contention is lack of any fixed timeline within which a curative
petition should be filed. A regulatory framework for the formulation of proper
guidelines regarding the time will not only aid the state in swift execution
but also help convicts in availing an available remedy in a time bound manner.
In the Nirbhaya case,
after issuance of the death warrant, convicts continuously filed for a curative
petition on different dates with a long time between them. This ultimately
results in wastage of resources and excessive delay in execution. That is the reason
why it is important to make a clarification regarding the filing of a curative
petition in a time bound manner.
After the order for
execution of the death penalty by the Apex Court, the convict can send the mercy
petition to the President’s office to seek respite. The entire idea of Mercy petition is also being
exploited by the convicts. In Shatrughan Chauhan v.
Union of India, the
court held that “It is
necessary that a minimum period of 14 days be stipulated between the receipt of
communication of the rejection of mercy petition and the scheduled date of
execution….”. In the Nirbhaya
case, the facts along with the provision made it clear that all the convicts
filing mercy petition individually is enough to add an unreasonable period for
the delay. These are the strategies used by the convicts to delay the execution.
The period from the date
of communication of dismissal of mercy petition to the date of execution of the
death sentence should be reduced from 14 to 7 days. Limiting the time can work
towards speedy execution of the death sentence and enables convicts to avail
other legal remedies available to them. The time of 14 days between the two
dates gives sufficient time to the co-convict to file for another mercy
petition which ultimately delays the execution. In the Nirbhaya case, the
pendency of petitions leads to delay in the execution of the death sentence of
those convicts who have exhausted all their legal remedies.
In cases involving
multiple death row convicts, the execution of the death penalty of a convict
who has exhausted all his legal regal remedies should not be further delayed
merely because the other co-convicts have filed for pardon proceedings. The
Apex Court in Harbans
Singh v. State of Uttar Pradesh held that all the convicts committed the same
offence cannot be treated differently unless there exist some extraordinary
circumstances. So, in the present scenario, if any convict files a review
petition or a curative petition or moves for a mercy petition, the death
penalty of any of the co- convicts can’t be executed until a decision has been
taken on such petition.
The substantial issue of
delay in execution can be reduced by fixing the time limit within which a
convict can apply for the legal remedies available to him. This will ultimately
lead to speedy disposal of justice by striking a balance between the rights of
victims and the rights of the convict.
Recommendations made by the Supreme Court in 2014
Every legal provision
can be tricked by the convict to delay the execution of the death penalty and
that is the reason why the law is considered potent and progressive. However,
there are some legal provisions made to appeal against capital punishment to
protect the right of life of people. It is not incredible to know that these
righteous provisions are used as a weapon to delay the execution of justice.
While overseeing the rights of the convicts, it is crucial to lay down
necessary guidelines in the interest of the victims. The recommendations made
by the Supreme Court regarding the execution of Capital punishment is whole “accused centric”.These guidelines fail to consider the excruciating
emotional distress and turbulence caused to the sufferer and their relatives.
Indian judicial system needs development in the way of providing such legal remedies to the convicts. For instance, if there are numerous convicts involved in a crime who are anticipating a death sentence, the competent Court should issue a warrant for the execution of the death sentence within seven days of rejection of mercy petition and the execution should be done within seven days thereafter disregarding any proceedings. The period of fourteen days provided after the rejection of a mercy petition needs to be examined. According to Rule 14(2) of the Delhi jail Manual, it is provided that the convicts committed the same offence cannot be executed separately. It is also stated that the convict can only be executed when all the other convicts involved have exhausted all their legal remedies available to them. This rule needs to be scrutinized to prevent its misuse.
Conclusion
After analyzing the Delhi rape case in 2012, it can be assumed that it was an insight gained by the nation, whether is about the laws for women’s safety or the shortcomings of the Indian judicial system. It is further anticipated that such an incident should not be forgotten, but rather used as a basis for structuring strong rules and regulations. Moreover, laws should be created to encourage people’s faith in the judicial system. The Court should strike a balance between delay in execution of death sentence and the rights of convicts. It would be the beginning of a new era when no sufferer must undergo the distressing period of delay and pendency.
[1] Sanjoy Majumder, India and the death penalty,BBC News (UK, 4 August 2005).
(Aishwarya Mehta is 3rd year law student from Maharashtra National Law University, Nagpur)
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