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Why it’s wrong to question ‘delay’ in hanging of convicts in 2012 Delhi gangrape-murder case

Those clamouring for immediate hanging forget that it's not just the prisoners on death row who can file a mercy plea – anyone can do so on their behalf.

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A lot has been said and written about the “delay” in hanging the four convicts in the 2012 Delhi gang-rape and murder case. The woman’s mother has also criticised “opposing forces” for the delay in execution. There have also been questions over the number of mercy petitions that the four convicts have been able to file, and over President Ram Nath Kovind’s “failure” to dispose them in a time-bound manner.

But the facts related to the hanging of convicts and the option of filing a mercy petition that is available to them have been largely overlooked.

Even though the President has rejected the mercy petitions in this case and the Supreme Court has dismissed the review pleas, it is no one’s argument that the convicts on death row were only exercising their right to seek clemency guaranteed under the law.

And decisions on such petitions take time, since the President is guided by the advice of the union council of ministers.

In fact, going by past precedents, the chances of all four convicts being hanged on 1 February, the scheduled date, are slim. To begin with, under settled law as well as Delhi Jail Manual as per the Delhi Prisons Act, 2000, and the Delhi Prisons Rules, they will need to be given at least 14 days before hanging.

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How a mercy plea progresses

Article 72 of the Constitution grants the President the power to pardon, suspend, remit or commute a convict’s death sentence. The President, upon receiving a mercy plea, seeks the opinion of the Union Ministry of Home Affairs (MHA), which, as per rules of business, is considered as the opinion of the council of ministers.

But before making a decision, the MHA is duty-bound to seek the views of the state authorities, including the jail staff, as well as obtain guidance on whether the mercy plea has any legal basis.

Many of those clamouring for the immediate hanging of the four convicts forget that it isn’t only the prisoners on death row who can file a mercy plea – anyone, from family members to foreign nationals to organisations not connected with the matter, can file a petition with the President’s Secretariat or the MHA on the prisoner’s behalf. And, the MHA must examine each mercy petition afresh and submit its recommendation to the President. This is where the delay often happens.

There are instances where scheduled hangings had to be postponed after fresh mercy petitions landed on the desk of the President.

Take the case of Afzal Guru. Convicted in 2004 for his role in the 2001 Parliament attack, Guru’s final appeal in the Supreme Court was rejected in August 2005 and the review petition in September that year. But he was hanged only on 9 February 2013 – almost eight years later.

In the case of the four convicts in the 2012 Delhi gang-rape and murder case, the Supreme Court had rejected their appeal against the death sentence only in 2017.

Then there are times when the President goes beyond the established procedure, which can also cause a delay. Then-President Pratibha Patil chose not to accept the MHA’s advice, opting instead to push the UPA government to change its recommendation. She held the belief that her religious teachings didn’t allow her to turn down a mercy plea. There have also been cases where Presidents have chosen to sit on mercy pleas, refusing to either reject or accept them.

Also read: Not just govt, judiciary also to blame for mounting judge vacancies in high courts

What does the manual say? 

As per the Delhi Jail Manual, the execution of the convict has to be mandatorily postponed until the President has decided on all mercy petitions.

For cases like the 2012 Delhi gang-rape and murder, in which there are four convicts on death row, the Jail Manual says if there is a mercy plea pending for even one convict, then the execution has to be mandatorily stayed for all the convicts

Regarding the timing of filing the mercy plea, the Delhi Jail Manual says that a mercy petition by the convict can be filed within seven days of the sentence being announced by the Supreme Court. However, there is no restriction on filing the mercy plea beyond the seven-day period.

Should there be a period of gap between the rejection of a mercy petition and the execution of the convict? Yes, it’s not just the Delhi Jail Manual, but even the Supreme Court is very clear on this.

In the Shatrughan Chauhan & Another versus Union Of India, the Supreme Court, in its landmark judgment on 21 January 2014, held that there must be a minimum 14-day notice given to a convict on death row before the execution.

“Some prison manuals do not provide for any minimum period between the rejection of the mercy petition being communicated to the prisoner and his family and the scheduled date of execution. Some prison manuals have a minimum period of 1 day, others have a minimum period of 14 days. 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,” the three-judge bench had said.

This 14-day period, the bench had added, would allow the “prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs”, besides giving him time to “have a last and final meeting with his family members”.

The author is a senior journalist. Views are personal.

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  1. Its strange opinion from an ex judge . Hanging in such crime is not wrong . Media trial and celebrations are. A crime like rape has no place in civilised society . Its finally treated correctly albeit with lot of delay . Who are the culprits ? Not only those four men for the act but the very process of implementing …Why has this process become painful is the delay in implementation of a judgement . And at the risk of mixing up who are we celebrating the execution ? We are the same ppl doing selfish act , taking bribes, disrespecting elders, abdicating parents in shelter homes , running blind race of money , power, carrier !! So let us be the “ first stone thrower” who has conviction of doing a celebration over a punishment. There is no place for another Nirbhaya . Deterrence is must. Capital order is required ; let us not enjoy death but ponder to educate our little society called Family so that we need not hang ourselves with candles at a chowk demanding hanging others . And please remember education and schooling or earning degrees need not necessarily be same ..,

  2. Everyone is defending the rapist and killer convicts only because they are living, only because they are like us, only because we can identify our living selves with them. Definitely we can not identify ourselves with the violated and mangled flesh of the corpse of Nirbhaya. And also that the body that became dead from living in most agonising and extremely painful way had been cremated do long back.
    Long live the solidarity of living persons.

  3. It’s very easy to sit in AC cabins and write such articles.
    Will the author write the same way if one of his / her family members were raped and killed the same way??
    Writing such articles gives the convicts or those supporting the convicts, more ideas to escape punishment.
    Finally the worst sufferers are the victims and their families.
    Justice delayed is justice denied.
    And to add salt to injury, the Delhi government has spent 10000 INR on rehabilitating the juvenile rapist.
    So, the author might be an expert on such issues. But nobody asked for his / her suggestions as of now. Please behave responsibly

  4. Nathuram Godse killed Mahatma Gandhi in 1948. He was executed in 1949. If that happened today, Godse may have a better chance of dying of old age.

    You have very conveniently ignored a large number of facts. Our self appointed judiciary has vastly expanded its powers. For instance, they have given themselves the right to review the president’s rejection of the mercy petition. Remember that the mercy petition is filed only after the Supreme Court has rejected all appeals. The whole process of “curative” appeal has no basis in any legislation and is not mentioned any where in the statutes or the constitution. It should be noted that the case was delayed for 6 years, because the Supreme Court refused to find time to hear the appeal (this didn’t stop the judges from taking long summer vacations).

    Finally, we should understand that this is a just a small window into our dysfunctional legal system. People die before their appeals are exhausted. A case of milk adulteration was just decided after 30 years. The people responsible for the Uphaar cinema were let off by the courts because of their age and the irony is that the delays were caused by the courts. It took the Supreme Court 6 years to reject Tarun Tejpal’s ridiculous appeal but they had no compunction in putting a hold on his trial. And the problem isn’t just for criminal case. Babri Masjid was just a land case that sat in the courts for 50 years before its destruction. Just imagine how the nation could have been saved the trauma if it had been adjudicated on time. Our economy has been damaged immeasurably because the courts delay every decisions or issue diktats that lead to enormous damage.

  5. Wrong to question delay in hanging the convicts. Isn’t it wrong to delay justice for what will seem like eons to victim’s family????

  6. Mr. Author, You can only preach and not understand pain of her parents. God forbid if it happens to your loved one, will you still lecture. This is exactly why people rejoiced on encounter of Hyderabad monsters. Shame on you!

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