There has been a trend among death row convicts to get their execution delayed through appeals and curative petitions. What are the legal loopholes that allow them to prolong their sentences despite the chief justice saying it is extremely important in such cases to have finality?
By India Legal Bureau
Court verdicts, technically, settle the rights and liabilities of all parties in a case. Of late, however, courts are witnessing multiple challenges to all kinds of verdicts. Even death row convicts, believing their sentence to be open-ended, continue to file a variety of pleas in an attempt to escape the gallows.
A rather piquant situation was seen recently when the Supreme Court dismissed the plea of Nirbhaya death row convict Mukesh Kumar who challenged the rejection of his mercy petition by President Ram Nath Kovind. The Court said there was no merit in the contention. “Alleged sufferings in jail can’t be grounds to challenge the rejection of mercy plea by President,” the Court said.
Expeditious disposal of the mercy plea doesn’t mean non-application of mind by the president, said the three-judge bench headed by Justice R Banumathi. The four death row convicts in the case were slated to be hanged on February 1, but the order was stayed by a Delhi court on January 31. Judge Dharmender Rana did not issue a fresh warrant for their execution. In his order, he said: “Seeing redressal of one’s grievances through procedure established by law is the hallmark of any civilised society. The courts of this country cannot afford to adversely discriminate any convict, including death row convict, in pursuit of his legal remedies, by turning a Nelson’s eye towards him.”
Nirbhaya’s mother, Asha Devi, broke down outside the courtroom and said the courts were destroying the trust that she had reposed in them. “The convicts are taking advantage of the law and delaying their execution.” Incidentally, February 1 was the second date fixed for carrying out the executions. The previous date was January 22.
Meanwhile, another death row convict in the Nirbhaya case approached the Supreme Court with a curative petition. This cycle of verdict, appeal, review, curative petition, mercy petition and appeal is a new phenomenon as prisoners attempt to ward off the inevitable execution. This was mentioned even by Chief Justice of India (CJI) SA Bobde recently while dismissing a plea filed by a couple, Shabnam and Saleem, from Amroha district in UP, who are on death row for sedating and hacking to death the woman’s family in April 2008. However in 2015, the Court cancelled their execution, saying the magistrate had acted in haste and the convicts were yet to exhaust their legal options.
The CJI said it was extremely important for the death sentence to have some finality. He said a death row convict should not feel that the sentence can be questioned all the time, adding that “one cannot go on fighting endlessly”. “We don’t want to focus or emphasise only on rights of accused in a case in which seven people, including a 10-month-old baby, have been murdered,” he said. The CJI said it was difficult to accept if the degree of reform undergone by a convict should be a mitigating factor. “This argument will have consequences beyond this case,” he said. “We are doing justice on behalf of the society and the victims. We cannot forgive a convict who has been convicted because there is a law, which deals with a criminal.” The Court said if convicts start claiming they had reformed, death penalties will not be carried out. The convicts will say we have reformed and we can come out, the judges added.
Even in the case of Mukesh Kumar, senior advocate Anjana Prakash, who appeared for him, claimed that he was sexually abused in Tihar Jail and pressed ahead with challenging the president’s rejection of his mercy plea. The Supreme Court enjoys the power of judicial review of executive actions, so challenging the rejection order of the mercy plea was technically possible. The bench hearing the matter was not initially piqued until Prakash mentioned that not all documents were presented before the president. Solicitor General Tushar Mehta, however, confirmed that all relevant materials as laid down in the 2014 guidelines of the Supreme Court were placed before the president. Prakash argued that the president should have known that Kumar was sexually abused in Tihar Jail where he has been an inmate since 2013. She claimed that all records were not sent to Kovind, so his decision to reject the mercy plea was “arbitrary and mala fide”. However, Mehta told the three-judge bench headed by Justice Banumathi that Kumar was not kept in solitary confinement and no ground of commutation has been made out. The bench held that “the alleged suffering” in prison cannot be a ground for judicial review of rejection of mercy plea under Article 72.
Meanwhile, on January 30, a Delhi court issued a notice to the Tihar Jail authorities and sought a report on an application filed by Vinay Sharma, another convict in the Nirbhaya case. He sought a stay on his execution on February 1 and wanted a fresh date for it. This application was moved before Special Judge Ajay Kumar Jain on the ground that Sharma has filed a mercy petition before the president. In fact, Sharma’s counsel, AP Singh, had urged the Court to adjourn the executions sine die. Taking note of this, the judge directed the Tihar Jail superintendent to file a reply on Sharma’s plea. But his stay demand was opposed by the special public prosecutor and another prosecutor on the grounds that in December, a seven-day notice was given to the convicts to avail of legal remedies.
In fact, Singh had earlier alleged in the Patiala House Court that Sharma was being slow poisoned and had even been hospitalised and that his medical reports were not being provided. The prosecution, however, told the court that the convicts were using delaying tactics and that Tihar Jail authorities had given all relevant documents. Singh said that a 170-page diary titled “Darinda” written by Vinay had not been received. He said the diary was essential for filing a mercy petition. The president rejected his plea.
Another convict in the same case, Akshay Kumar Singh, had filed a curative petition against his death sentence in the Supreme Court, which was dismissed. A five-judge bench said: “We have gone through the curative petition, and the relevant documents” and that “in our opinion, no case is made out…” On February 1, however, he filed a mercy petition before the president.
Even Pawan Gupta, the fourth convict in the case, had submitted an application before the apex court to review its earlier order dismissing his claim of juvenility. The Court rejected his application. Pawan was 19 as per the Court’s records. He had wanted medical tests done to prove he was under 18.
When deciding such cases of convicts, courts must also take cognisance of the suffering of victims, be it Nirbhaya, the Hyderabad girl who was gangraped and burnt, or numerous other victims of such bestiality. Despite pendency plaguing courts, in this particular case the President acted swiftly in rejecting the mercy plea. But this was not appreciated by Kumar’s counsel as she unsuccessfully argued that the mercy petition was dealt at all levels with a predetermined mind.
The problem in the Nirbhaya case is that there are four convicts who have to be hanged at the same time. Each can file all sorts of petitions which are basically stalling the inevitable, unlike say, an Afzal Guru, who was allowed to file one mercy petition which was rejected by the president. Even in his case, the Parliament attack he was accused of masterminding, took place in 2001. The Supreme Court confirmed the death penalty in 2005 but it was not till 2013 that Guru’s execution was finally carried out.
For judges, too, such cases have to be handled with care. As CJI Bobde said in the seven-murder case: “It is not the judge but the law that deals with a criminal. A judge, being a human being, cannot forgive a murderer. The law and the judge act for the society. Imagine a situation when a judge tells a murderer ‘oh yes, I forgive you!’ Imagine the impact.”
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