16 December gangrape
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New Delhi: The execution of the four death row convicts in the 16 December gang-rape and murder case will not take place on 22 January because one of them has filed a mercy plea before the President of India.

The mercy plea was filed by Mukesh Singh Tuesday. The three other convicts are Vinay Sharma, Pawan Gupta and Akshay Thakur.

On Wednesday, Mukesh also moved the Delhi High Court seeking a stay on the death warrant issued on 7 January by a sessions court. The petition was rejected.

During the hearing, Justice Manmohan Singh said the plea “looks like a strategy to prolong the legal process”.

ThePrint looks at the web of legal complexities involved in the case where the four convicts are using all available remedies to commute their death sentences to life imprisonment.

Legal options the 4 convicts have used and what’s left

In the 16 December gang-rape 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 hang.

Thereafter, review petitions were filed in the Supreme Court by Vinay, Pawan and Mukesh. All three petitions were dismissed in July 2018.

The fourth convict, Akshay, filed his review plea in December 2019, which was dismissed immediately.

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

Then, on 7 January, a death warrant was issued by a Delhi sessions court. The warrant stated that all four will hang together 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.

As of today, only Mukesh has filed a mercy plea. So, the remaining three can still file their own mercy pleas. Also, Akshay and Pawan have not yet filed any curative petitions.


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


Why are 4 persons convicted in the same case allowed separate pleas?

The answer lies in the Right to Life guaranteed in the Constitution as a fundamental right.

This means that every accused/convict has an individual right with respect to his own life, and, so the pleas can be chosen not to be clubbed and heard on individual merit.

Courts have no role to play in this and it is entirely the prerogative of the accused/convict to exhaust own legal options.

Why no execution on 22 January?

On 14 January 2014, the Supreme Court, in the Shatrughan Chauhan case, framed a number of guidelines to safeguard the interest of death row convicts.

Among the guidelines is the stipulation that a convict must be given 14 days between being informed that his mercy plea has been rejected and his execution.

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

So, since Mukesh has filed his mercy plea only on 14 January, the execution cannot take place eight days later on 22 January.


Also read: All 4 convicts of 16 December gang rape will be hanged together in a row — a first in India


How the convicts can buy more time

This case has four convicts, so, if the remaining three — Vinay, Pawan and Akshay — file their mercy petitions just as the 14-day period for previous petition is about to end, this whole process could take a minimum of 56 days.

Also, the Delhi High Court Wednesday refused a stay on the death warrant and told Mukesh to approach either the sessions court or the Supreme Court. Now, if he moves the lower court, another round of appeals and dismissals will begin, which will go all the way up to the Supreme Court.

Has the 14-day period stipulation always been followed?

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

Memon’s lawyers — in a rare midnight hearing on 29 July at 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 petition?

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.

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.


Also read: Meet the Delhi Police officer who never missed a single hearing in ‘Nirbhaya’ case


Can a convict challenge rejection of mercy petition before SC?

Yes.

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

The convicts can challenge the presidential 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.

The convict can also choose to move the relevant high court.

However, while the case can be filed, the question whether a high court can hear a challenge to a presidential decision is pending before the SC.

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5 Comments Share Your Views

5 COMMENTS

  1. All this goes to show VICTIMS OF RAPE HAVE NO RIGHT TO LIVE AND RAPISTS CAN RAPE AS THEY WANT , ANY PLACE , ANY TIME. SMART LAWYERS WILL TAKE CARE TO PROTECT THE RAPISTS AND HANG THE VICTIM. THIS IS INDIAN LAW AS UPHELD BY LAW COURTS

  2. Every one of the rapists must be hanged individually as and when the last options expire. If they have not filed for mercy then they must be hanged immediately as on given date.

  3. Central Government has to take a simple step to stop the misuse the route of mercy petition to the President. Restrict the opportunity to file mercy petition only once in the life time of a person.

  4. You are incorrect in implying that the right to life in the constitution is somehow responsible for the delays. The vast majority of the impediments to justice have been erected by judges who have shown a propensity to make up their own “laws”. The very concept of the “worst of the worst” is invented by the courts out of thin air and provides not an iota of clarity. The repeated reviews have also been created by the courts, including one that was added less than 10 years ago. What most people don’t understand is that the judicial system has no interest in the victims or their family. The Supreme Court sat on Nirbhaya case for 6 years, refusing to find time for it. In contrast, consider the dozens of hearings Chidambaram got by numerous judges over a period of days. The higher courts have made a mockery of the law and justice.

  5. Well explained sir…
    I have few questions regarding this👇🏽

    “How the convicts can buy more time
    This case has four convicts, so, if the remaining three — Vinay, Pawan and Akshay — file their mercy petitions just as the 14-day period for previous petition is about to end, this whole process could take a minimum of 56 days.”

    So whether the convicts have right to pleas cannot be clubbed and heard on individual merit.
    Then why no individual execution of the punishments?

    Whether they cannot be executed individually? So that the 56 days period won’t be that longer…

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