DH Deciphers | Are Nirbhaya’s killers playing with law?

The December 16, 2012, Nirbhaya gang rape and murder case had created national outrage due to the brutality of the offence. The six perpetrators of the crime were arrested and stood trial in a fast-track court. One of the accused died in jail during trial, another – a juvenile, was found guilty and sent to three years in a reform facility. The other four were convicted and sentenced on Sept 13, 2013, to death by hanging. The sentence is yet to be carried out.

What happened after the trial court sentencing?

The four convicts – Mukesh, Akshay, Pawan and Vinay -- went on appeal to the Delhi High Court, which upheld the death sentence. Thereafter, they went on appeal to the Supreme Court. The SC, too, upheld the sentence on May 5, 2017.

So, why haven’t they been executed yet?

Following a Supreme Court judgement, a convict is allowed to file ‘review’ and ‘curative’ petitions as part of his right to legal remedies. In case of death sentence, the convict can also petition the President or the Governor of a state for mercy under Articles 72 and 161 of the Constitution.

In the instant case, Mukesh and Vinay filed their review petitions separately in late 2017, and these were dismissed in July 2018. Pawan and Akshay filed their review petitions separately in December 2019.

On January 7, the trial court for the first time issued the death warrants, fixing their execution for January 22.

What happened then?

After the date was fixed for the execution, the convicts started filing petitions one after the other, forcing the trial court to defer the execution. Mukesh filed a curative petition in the SC on January 9, which was dismissed on January 14. He filed a mercy plea with the President on January 14, which was rejected on January 17.

As per the Shatrughan Chauhan judgement (2014), a minimum of 14 days must be given to the convicts from the time they are told their mercy plea has been rejected to the date of execution. Thus, the hanging was fixed for February 1.On January 31, the trial court deferred the date once again as Vinay had moved a mercy petition. On February 17, the trial court issued a fresh date – March 3 – for the execution. On March 2, Pawan filed his mercy petition, which the President rejected on March 4. All four can be hanged only after all of them exhaust all their legal options and mercy pleas.

Why not hang them one by one as each one exhausts his appeals? Do they have to be hanged simultaneously?

The Delhi Prison Rules do not specify any particular rule, but Delhi High Court has ruled that since the fate of the four convicts has been decided by a common order and judgement at every stage – from trial court to SC, the death warrants, too, have to be executed together, not separately.

Meanwhile, the SC has fixed March 5 as the date for the Centre to appeal against this HC order of February 5.

Why has the Centre got itself involved in the judicial process?

The Ministry of Home Affairs got involved in the process saying that the convicts were acting in tandem to delay or escape their fate. It has filed a plea in SC seeking new guidelines -- death warrants to be issued within 7 days of rejection of mercy petition, and execution to be carried out within 7 days thereafter, irrespective of co-convicts’ pending pleas.

Could the hanging of the Nirbhaya convicts be put off further?

A convict can even challenge the rejection of a mercy petition by filing a writ petition on grounds of procedural irregularity or non-application of mind or other grounds like furnishing of incomplete documents to the mercy authority. Mukesh and Pawan have been through this process, and their pleas have been rejected by the SC. It remains to be seen if the other two convicts take recourse to this last appeal.