On Monday, 2 March, the Patiala House Court deferred the execution of the four Nirbhaya convicts until further orders, in light of the mercy petition filed by Pawan Kumar Gupta earlier in the day.
This means that the execution date of the four men found guilty of the gruesome gang-rape and murder of a 23-year-old female physiotherapy student, in December 2012, has been postponed for the third time now. Dates for the convicts’ execution were set thrice – 22 January, 1 February and 3 March – and deferred last-minute on all three occasions as some legal proceedings or remedies were pending.
While some have blamed the convicts and their lawyers for this, and others have taken aim at the Delhi jail authorities, the real blame for this repeated chaos appears to be the courts themselves.
Each time a date has been set by the Patiala House Court, it has done so two weeks from the date of its order.
To any neutral legal observer, this made it clear that the executions could not in fact happen on those dates, because on each of those occasions, at least one curative petition before the courts and at least one mercy petition to the President of India, have been pending at the time.
The law on all this is clear – a death row convict can only be executed at least 14 days after the rejection of their mercy petition, as per the Supreme Court’s judgment in the Shatrughan Chauhan case. The convicts also cannot be executed separately, again something laid down by the apex court back in 1982 in the Harbans Singh case, and reiterated by the Delhi High Court on 5 February.
Despite knowing these things, the court has continuously specified execution dates two weeks into the future, which were never possible as the last mercy petition had not yet been rejected by the President.
This chaos has ended up being a violation of the convicts’ rights, a disservice to the victim and her family, and also eroded public trust in the courts. One can only hope they learn from this fiasco and don’t repeat the same chaos in the future.
Why the Third Date Also Needed to be Deferred
With the Supreme Court's rejection of Pawan Kumar Gupta's curative petition on Monday, 2 March, the Nirbhaya convicts had exhausted all their legal remedies before the courts.
However, while three of them – Mukesh, Vinay and Akshay – had already seen their mercy pleas to the President rejected, Pawan had been yet to file his mercy petition till Monday, and its pending status meant that the convicts could not be executed at 6 am on 3 March as scheduled.
Earlier in the day, Delhi's Patiala House Court had reserved its order on Gupta's application seeking a stay on the executions, filed on the basis that his mercy petition had been filed with the President and a convict cannot be executed until 14 days after the rejection of their mercy plea.
The death warrants for the four convicts had been issued by the same judge, ASJ Dharmender Rana on 17 February, setting the date of execution for Tuesday, 3 March.
Pawan filed his mercy petition to the President of India on 2 March, immediately after the rejection of his curative petition by the apex court. Mercy petitions are the final resort for a death row convict to get their sentence commuted to life imprisonment.
All Legal Remedies Exhausted by the Convicts
Pawan and Akshay had approached the Patiala House Court in Delhi asking for a stay on the execution, the former because of his curative petition, and the latter on the basis of a fresh mercy plea. The judge dismissed both these requests on Monday.
However, after being informed of the submission of Pawan's mercy plea by his lawyer AP Singh, Judge Dharmender Rana heard a fresh application for stay on the executions in light of this development.
During the hearing, Singh argued that he had filed Pawan’s mercy petition as soon as the curative petition was rejected. The public prosecutor and a lawyer for Jyoti SIngh’s parents argued that there had been no need for him to wait till then, and that he should have instead filed the mercy petition by 12 February, the date specified by the Delhi High Court for the filing of all relevant applications/petitions.
However, even the public prosecutor accepted that the executions could not take place while the mercy petition was pending in light of the Delhi Jail Manual rules and previous Supreme Court judgments, though he said this did not require a court order.
The other three convicts – Mukesh, Vinay and Akshay – had previously exhausted all their legal remedies (appeals, reviews and curative petitions) and had seen their mercy pleas to the President rejected.
Akshay Singh filed a fresh mercy plea before President Ram Nath Kovind on Sunday, 1 March, claiming that the earlier mercy petition filed on his behalf didn't include all relevant details, but this was not accepted by Judge Rana as grounds for staying the execution.
Convicts Cannot be Executed Separately: HC
The Delhi High Court on 5 February had confirmed that the convicts could not be executed separately. While this decision has been challenged in the Supreme Court, the apex court has deferred hearing the matter till 5 March (after the scheduled date of execution).
In the meanwhile, the order of the Delhi High Court remains in force, which means that if the conviction of any of the convicts was not possible on 3 March, then none of them could be executed on that date.
As per the Supreme Court's decision in the Shatrughan Chauhan case and the Delhi Jail Manual, a death row convict cannot be executed until at least 14 days have passed since the rejection of their mercy petition to the President.
Until Pawan's mercy plea is rejected, therefore, it would appear that none of the convicts can be executed as per the law. Further clarity will be provided by the judge soon.
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