Why Nirbhaya Convicts Are Not Going to Be Hanged on 22 January

Convicts on death row cannot be executed for at least 14 days after their mercy petitions are rejected.

Nirbhaya gang rape and murder case convicts.

(Photo: Altered by The Quint)

Despite the issue of a warrant of execution – a so-called ‘black warrant’ – by the Patiala House court on 7 January, it looks like the men convicted in the brutal Nirbhaya gang- rape and murder case, will now not be executed at 7 am on 22 January, as the court had directed.

WHY CAN THE CONVICTS’ EXECUTION NOT TAKE PLACE ON 22 JANUARY?

This is not because the plea filed in the Patiala House court by Mukesh Singh, one of the convicts, for a stay on the convict’s execution while his mercy petition is decided by the President, has been successful. The case is being heard again on Friday, 17 January, and in any case, the judge has already indicated that he does not have the power to postpone the date of the execution.

Instead, the reason for the delay is that there has to be a gap of at least 14 days between the rejection of the convicts’ mercy petitions. Standing counsel for the Delhi government, Rahul Mehra made this point in the Delhi High Court on Wednesday, and it was reiterated by Vrinda Grover, who represented Singh in the Sessions Court on Thursday.

This time period was specified by the Supreme Court in the 2013 Shatrughan Chauhan case, which said that this time is needed to allow the prisoner to mentally prepare themselves for the execution, settle their affairs and meet family members. The Delhi Jail Manual 2018 acknowledges this decision of the Supreme Court in Rule 858.

DO THE CONVICTS HAVE ANY LEGAL REMEDIES REMAINING?

One of the complications in this case is that not all the convicts have filed their mercy petitions, or even the curative petitions which are their last attempt to get the Supreme Court to reconsider their case. Till date, only Mukesh Singh has filed a mercy petition (one of the other convicts had, but then withdrew it) while two of the convicts are yet to file their curative petitions.

Executions of persons convicted for the same offence cannot be carried out until all legal and administrative remedies of all the convicts have taken place, so even if Mukesh Singh’s mercy petition were rejected tomorrow, this would not mean the convicts could be executed within 14 days from then.

The delays by the convicts in filing their remaining pleas has led to claims that they are trying to game the system. One of the problems raised, in particular, is that they did not file their review petitions within a week of the Supreme Court’s confirmation of their conviction and sentence in 2017.

All these review petitions have subsequently been dismissed, but even after being issued notice by the Tihar Jail Authorities in December 2019, two of them haven’t filed their curative petitions and three of them still haven’t filed their mercy petitions – action should have been taken within a week of the notice, according to the Delhi Jail Manual.

WHAT HAPPENS NOW?

Tihar Jail authorities informed the Patiala House court on 16 January that since the convicts didn’t file their mercy petitions within a week from the time, their appeals were dismissed, and they need to follow the procedure laid down in Rule 840 of the Delhi Jail Manual.

Under this, the Superintendent of the Jail has to forward the mercy petition submitted by the convict to the Delhi Government, requesting orders on whether the execution should be postponed and stating that till they receive a reply, the sentence will not be carried out.

The Sessions Judge hearing the case pointed out that the documentation submitted by the jail authorities didn’t seem complete, and asked them to file the complete report with the court on Friday. The Delhi Government has indicated that they agree the execution cannot take place on 22 January as a result of this mercy plea.

With regard to the potential gaming of the system by the other convicts, there has not been any judicial condemnation of the same in these new orders as such. When the Supreme Court dismissed the curative petition filed by two of the convicts on 14 January, the order did not mention anything about a delay in filing the petitions either.

In these circumstances, it looks likely that it will be a while before the convicts are executed.