16 December gangrape
Illustration by Arindam Mukherjee | ThePrint
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New Delhi: Less than 48 hours before they are scheduled to be hanged, four death row convicts in the 16 December gangrape and murder case are exercising all legal options to ensure the execution is deferred.

Vinay Sharma (26), Mukesh Kumar (32), Akshay Kumar Singh (31) and Pawan Gupta (25), who are to be hanged on 1 February at 6 am, Thursday approached the Delhi High Court seeking a stay on the death warrant issued by a sessions court earlier this month.

While Vinay also filed a mercy petition with President Ram Nath Kovind Wednesday, a curative petition filed in the Supreme Court by Akshay was dismissed Thursday.

Legal options convicts have used & what’s left

In the December 2012 gangrape and murder case of the 22-year-old physiotherapy student, a trial court in September 2013 had awarded death penalty to all four accused.

The Delhi High Court upheld the trial court order in March 2014. The case moved to the Supreme Court, which, in May 2017, accepted that this was a “rarest of rare” crime and all four were sentenced to death. 

Thereafter, review petitions were filed in the Supreme Court by Vinay, Pawan and Mukesh. All three petitions were dismissed in July 2018. Akshay filed his review plea in December 2019, which was dismissed immediately.

Authorities at the Tihar jail, where the four are currently lodged, then told the four convicts that they have two weeks to use their legal options, but no pleas — curative or mercy — were filed by them within the time-frame.

Then, on 7 January this year, a death warrant was issued by the Delhi sessions court. The warrant said all four will be hanged together in a row at 7 am on 22 January.

It was only after this that curative petitions — seeking to commute the death sentence to life imprisonment — were filed by Mukesh and Vinay. These pleas too were dismissed by the Supreme Court on 13 January.

Mukesh filed his mercy plea on 16 January, which was dismissed by President Kovind the next day. A plea was then filed by him in a Delhi court, demanding to stay the hanging, following which the court postponed the hanging to 1 February. 

Mukesh then challenged the rejection of his mercy plea on 28 January, saying the President “did not apply his mind”. A three-judge bench of the Supreme Court dismissed his plea on 29 January.

Vinay, meanwhile, moved his mercy petition to the office of the President Wednesday, while Akshay filed a curative plea before the SC.

The four also approached the Delhi High Court Thursday to stay the 1 February death warrant.

Pawan is the only convict, who hasn’t filed either a curative or mercy plea. Akshay too has the option of filing a mercy plea regardless of his curative petition. It is only Mukesh, who has exhausted all his legal options.

Also read: Gym instructor, fruitseller, bus driver — the 6 men convicted in Nirbhaya gangrape-murder

Why can’t the 4 convicts be hanged separately? 

The Delhi Prison rules ensure this safety cover.

According to the Delhi Jail Manual, Rule 14(2) makes it clear that multiple convicts in the same crime cannot be hanged before each one of them has exhausted all legal options, including filing the mercy petition before the President.

It is also for this reason that the convicts are using the legal options simultaneously in order to buy time.

Their lawyer A.P. Singh has also approached the Delhi HC for a stay on the death warrant on this very premise.

Why is a possible hanging on 1 February difficult?

The Delhi Jail Manual categorically states that a death convict should be given 14 days after the dismissal of his mercy petition by the President. Two convicts, Pawan and Akshay, are yet to file their mercy petitions.

A 2014 SC judgment, too, mandates a 14-day breather. 

The verdict in the Shatrughan Chauhan vs Union of India case says, “It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution…”

Thus, according to the SC guidelines, there exists a stipulation that a convict must be given 14 days between being informed that his mercy plea has been rejected and his execution.

The apex court had also stated in the 2014 verdict that this period of 14 days would give a convict time to make “peace with God” and accept his fate.

Hence, since Vinay filed his mercy plea only on 29 January, the execution cannot take place two days later on 1 February.

How the convicts can buy more time

If Pawan files his mercy petition, the whole process could take a minimum of 28 days more because Vinay’s mercy plea is also pending with the President and if it gets rejected, he is supposed to get a 14-day breather.

Also, the Delhi High Court had refused to stay the death warrant issued for 22 January and had asked Kumar to approach either the sessions court or the Supreme Court. 

Now, the convicts have again approached the same route of Delhi HC to stay the 1 February death warrant. In all probability, the court will ask them to approach the sessions court, which will lead to further arguments and delay in the hanging.  

Has the 14-day period always been followed?

In 2015, President Pranab Mukherjee had rejected 1993 Mumbai blasts accused Yakub Memon’s mercy plea.

Memon’s lawyers — in a rare midnight hearing on 29 July at then Chief Justice of India H.L. Dattu’s residence — had urged the Supreme Court to uphold the 14-day rule or at least the seven-day rule prescribed by the Maharashtra Jail Manual. 

But Dattu rejected the plea and Memon was hanged just a few hours later on 30 July. 

How does a President decide on a mercy plea?

Under Article 72 of the Constitution, “the President shall have 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 where the sentence is a sentence of death”.

But the President cannot exercise his power of pardon independent of the government.

The Rashtrapati Bhavan has to forward the mercy plea to the Ministry of Home Affairs, seeking advice. The ministry, in turn, forwards this to the state government concerned. Based on the reply from the state, the ministry formulates its advice to the President. It is after this that the President takes a call.

Although the President is bound by the government’s advice, Article 74(1) empowers him to return it for reconsideration once. But if the government decides against any change, the President has no option but to accept it.

Can a convict challenge rejection of mercy petition before SC? 

Yes. Mukesh had challenged the President’s rejection of the mercy plea before the SC, arguing he did not apply his mind and that all documents were not presented before him. Kumar also said he was sexually abused in prison.

The Supreme Court in 2006 had held that the powers of the President or the Governor under Articles 72 and 161 are subject to judicial review. 

The convicts can challenge the President’s decision on the ground that (a) it was passed without application of mind; (b) it is mala fide; (c) it was passed on extraneous or wholly irrelevant considerations; (d) relevant materials were kept out of consideration; (e) it suffers from arbitrariness.

Also read: Black warrant hearing in 16 December gangrape-murder case today. This is what the law says


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