Questions arise if Nirbhaya rapists get reasonable time

After issuance of death warrants in the Nirbhaya case, questions may arise if the convicts are given a reasonable time to exhaust their legal remedies, since they have yet to file a curative petition in the Supreme Court and mercy petition with the President.

A window of 14 days has been given by a trial court, which fixed January 22 as the date of the hanging of convicts Akshay (31), Mukesh (32), Pawan (25) and Vinay (26), for taking further legal recourse.

After the top court's dismissal of review petitions of three convicts on July 9, 2018, they did not file the curative petition. One of the convicts had filed mercy petition but subsequently withdrew it.

On Tuesday, Additional Sessions Judge dealt with this issue after public prosecutor pointed out giving time to file a curative petition was not a remedy available to the convicts as per the SC judgement in Mohd Arif's case. The court agreed that sufficient time and opportunity had been given to the convicts to exercise and exhaust their remedies as available under the law.

Still, all the convicts had so far not filed mercy petition.

In Shabnam Versus Union of India' (2015), the Supreme Court had noted that the right to file mercy petition is not mere formalities but a constitutional right.

“State has to wait for a reasonable period, even after such convicts fail in the review petition, if they so file. Otherwise, there would be a violation of the famous rhetoric of Emperor Ashoka who said 'State should not punish with vengeance',” it said, adding issuing death warrant before the lapse of reasonable time for filing review petition would have violated the right to life under Article 21 of the Constitution.

The court had then said, the process and procedure from confirmation of death sentence by the highest court till the execution, the convict is to be treated with human dignity to the extent which is reasonable and permissible in law.

“The right to file mercy petitions to the Governor of the State as well as to the President of India also remains intact. These remedies are also of substance and not mere formalities,” it said.

This remedy is again a constitutional remedy as the executive head is empowered to pardon the death sentence (this power lies with the President under Article 72 and with the Governor of the State under Article 161 of the Constitution). Thus, the power to pardon is a part of the constitutional scheme which has been reposed by the people through the Constitution in the Head of the State and enjoys high status, the court had added.

In 'Shatrughan Chauhan and Anr vs Union Of India' (2014), the Supreme Court said the execution of the death sentence must also be in consonance with the constitutional mandate and not in violation of the constitutional principles.

“Remember, retribution has no constitutional value in our largest democratic country,” the court had cautioned.