The repeated deferral of the hanging of the convicts in the Nirbhaya case has attracted intense public scrutiny from both proponents and opponents of the death penalty in India. While the fast-track court convicted the accused within ten months of the incident, the process in the appellate courts has prolonged the execution of the sentence.
India has expressly constitutionalised capital punishment. In the landmark case, Bachan Singh v. State of Punjab, the Supreme Court dismissed the argument that capital punishment is unconstitutional. However, the court held that such a penalty could only be awarded in the “rarest of rare” cases, where the crime is so heinous that it shocks the morality of the public. Once a death sentence is awarded by the Supreme Court, an individual has three remedies: a review petition, a mercy petition, or a curative petition.
While the question of the constitutionality of the death penalty continues to be a part of public discourse, the Nirbhaya case brought forth a new problem: Once the Supreme Court confirms the death sentence, is it in the interest of justice to expedite the execution of the hanging?
The debate arises against the backdrop of alleged misuse of remedies available to the convicts, who have repeatedly and separately appeared before the court with the abovementioned remedies. As the Delhi Jail Manual mandates the death sentence of convicts charged with the same crimes to be executed together, these petitions delay the hanging of all the convicts.
For instance, Pawan Gupta filed his mercy and curative petition on 2 March, one day before the hanging was scheduled. Further, despite the dismissal of the review petitions of the other three convicts in July 2018, Akshay Thakur’s review petition was dismissed in December 2019 as his lawyers deliberately delayed it.
All three remedies have now been exhausted by the convicts. Yet, the efforts by the convicts to delay the execution persist. Mukesh Singh claims that his curative and mercy petition should be declared void as his lawyer, in collaboration with the Delhi Police, coerced him into signing the petitions. On these grounds, Mukesh Singh sought a stay on his death warrant till July 2021 and requested permission to file fresh petitions. Vinay Sharma has recently appealed to the court to delay his hanging due to medical injuries. Additionally, he filed another mercy petition before the Governor due to the mental and physical torture that he was subjected to during his time in prison.
The delays in the execution of their death sentences caused the public and the central government to pressurise the courts to expedite the process. In an application before the Supreme Court, the centre criticised the existing laws for being convict-centric and ignoring its impact on the victim and society at large. Additionally, the centre asked for a limitation period to file curative and mercy petitions, which does not currently exist. The centre also called for the nullification of all petitions filed by convicts following a denial of their mercy petitions by the President or the Governor.
However, the procedural obstacles to the execution of a death penalty are intentional and necessary. While depriving an individual of their right to life, all possible legal remedies must be exhausted. The Executive Director of Project 39A, Surendra Nath, highlighted the importance of giving proper consideration to a case, emphasising on the danger of imposing a limitation period on petitions against the death penalty. Courts and lawmakers have repeatedly expressed the need to tread with caution while executing a death sentence due to the permanent and irreversible nature of the punishment.
Statistics show that a majority of death sentences are not confirmed on appeal, thereby highlighting the need for a meticulous assessment of every individual’s case and the importance of the death sentence being subject to multiple layers of appeal.
According to the Death Penalty India Report by Project 39A, from 2000 to 2015, out of the 1,486 convicts that were sentenced to death by trial courts, merely 73, who form just 4.9% of the total cases, were confirmed in the appellate process. Moreover, out of the 1,486 death row convicts, 443, who form 29.8% of the total cases, were acquitted entirely.
Project 39A’s 2019 report showed that ten individuals on death row were acquitted due to lack of evidence to confirm their guilt. Further, 17 cases were commuted to life as they did not meet the “rarest of rare” standard. Additionally, all six death warrants issued in 2019 remain stayed by higher courts.
Unlike the Nirbhaya case, most death row convicts do not have access to competent legal representatives due to various socio-economic factors such as social standing and financial capabilities. Statistics show that socio-economically disadvantaged members of the society discriminately bear the brunt of the death penalty. For instance, Project 39A reports that 74.1% of death row inmates are economically vulnerable on account of their occupation and landholding.
In addition, 23% of such inmates did not receive any educational training, and a further 9.6% did not complete their primary education. Moreover, 76% of the prisoners are from social and religious minorities. Hence, expediting the petition process will further skew the impact of the death sentence on disadvantaged members of the society.
The need of the hour is to find a balance between securing the rights of the victim and the accused while disassociating legal processes from public pressures. The hanging of the convicts in the Nirbhaya case has evolved to be symbolic of the public’s rage towards the incident. The execution of the sentence is now equated with the credibility of the justice system.
While courts must be sceptical of the exploitation of legal protections, the burden must not be borne by the convicts. Hence, rather than imposing timelines and forcefully expediting the process, courts must take action against lawyers for unnecessarily delaying the sentencing process, while simultaneously ensuring that no individual is improperly represented or denied any legal remedies to which they are entitled.
Reference List
Annual Statistics Report, 2019: Death Penalty in India. Project 39A. National Law University, New Delhi.
Consultation Paper on Mode of Execution of Death Sentence and Incidental Matters. (2002). Law Commission of India.
The Code of Criminal Procedure (Act No. 2 of 1974).
The Constitution of India, 1950.
The Delhi Prisons Act ( Delhi Act No. 2 of 2002).
The Delhi Prisons Rules, 2018.
Bachan Singh v. State of Punjab AIR 1980 SC 898.
Rupa Ashok Hurra v. Ashok Hurra and Anr. (Writ Petition (Civil) 509 of 1997 and Writ (Civil) 108 of 1999).
Shatrughan Chauhan & Anr. v. Union of India. (Writ Petition (Criminal) No. 55 of 2013).
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