Petitions and safeguards: Understanding the delay in Delhi gangrape convicts’ hanging

The four convicts in the 2012 Delhi bus gangrape case — Mukesh Kumar Singh, Pawan Gupta, Vinay Sharma, and Akshay Kumar Singh — will be hanged at 5.30 am on March 20, a Delhi court said on Thursday. The mercy plea filed by Pawan was rejected by the President on Wednesday.

The fresh date is in line with the requirement of a gap of 14 days between the date of rejection of the mercy petition and the date of hanging.

2012 Delhi gangrape case: Fourth date in 2 months

This is the fourth time since January that a date has been set for the executions. Multiple petitions have been filed and rejected during this period, and multiple death warrants have been issued and postponed. This is because the regular legal procedure in death penalty cases has multiple checks, and because the realisation of past failures has resulted in the addition of an extra layer of protections for death row convicts.

The process of the law

It is a principle of criminal law that it is preferable to exonerate 10 criminals to condemning even a single innocent. The legal procedure by which a convict is sent to his death is complex, and packed with safeguards.

Thus, a trial court may pronounce the death sentence only in the “rarest of the rare” cases — and such a sentence is automatically referred to the High Court for confirmation. A warrant of execution may only be issued once the sentence has been confirmed by the High Court.

The convict then has the option of approaching the Supreme Court against the High Court’s decision. After the Supreme Court’s decision, the convict may file a review petition, and a separate curative petition before the Supreme Court. Both are standard legal processes, meant to rectify egregious errors in judgments.

Thereafter, a mercy petition before the President may be filed. Such a petition is disposed of after a process involving a recommendation from the relevant state government, and sanction from the Home Ministry.

The convict may then approach the Supreme Court again by filing a petition questioning the legitimacy of the President’s decision in the mercy petition. The disposal of this petition ends the process, and the death sentence may be executed thereafter.

This adds up to four separate petitions available to a convict even after the Supreme Court has confirmed the conviction. Thus, while a death warrant may be issued once the High Court has confirmed the sentence, it may not be executed until all these remedies have been exhausted.

Additional complications

In 1975, three persons sentenced to death for the same crime ended up suffering different punishments because separate legal processes had been followed for each convict. Shocked by the inconsistency that resulted in one convict being hanged while another had his sentence commuted, and in order to ensure that this does not happen again, the Supreme Court directed that convicts in the same crime must be executed together.

Reliefs available and pending after SC’s decision on 5.5.2017

This meant that as long as a convict’s petition remained pending before any forum, all co-convicts were protected by default. This safeguard has been invoked by the convicts in the Delhi bus gangrape case to secure extensions — and the four petitions available to them after confirmation of the conviction by the Supreme Court have in effect, become 16 — four for each convict, one followed by the other.

Current status of the case

The first death warrant was issued on January 7, two years and eight months after the Supreme Court confirmed the sentences. Thereafter, each convict filed separate petitions, typically moving just before the scheduled date of execution, and thereafter approaching the court to secure a postponement on grounds of pendency of the petition. Thus Pawan’s mercy petition was filed on Monday, with the hanging scheduled for Tuesday.

As of now, all remedies up to the mercy petition stage have been filed and rejected for all convicts. Petitions in the Supreme Court by Mukesh and Vinay challenging the rejection of their mercy petitions have been rejected. However, similar petitions have not yet been filed for Pawan and Akshay.

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Counsel for the convicts, A P Singh, has indicated that he intends to file a curative petition against the Supreme Court’s rejection of Pawan’s plea of juvenility. He is also likely to to challenge the rejection of the mercy petitions of Pawan and Akshay before the Supreme Court.

Given the record in this case, however, these two remaining remedies could be exhausted quickly. Mukesh had preferred a petition against the rejection of his mercy petition on January 28, three days before the hanging scheduled for February 1 by the second death warrant — however, the Supreme Court had dismissed it the very next day. The date of execution was postponed only after Vinay preferred a mercy petition on January 29.

Pranay Modi is a Research Fellow at Vidhi Centre for Legal Policy, New Delhi.