The Supreme Court on Wednesday (December 18) cleared the decks for the execution of the four convicts in the December 16, 2012 Delhi gangrape case, rejecting the review petition of Akshay Kumar Singh, one of the four convicts.
Once the review has been rejected, the state can move to obtain a warrant of execution from the trial court.
On Wednesday, soon after the Supreme Court’s decision, Additional Sessions Judge Satish Kumar Arora commenced hearing on a plea by the Delhi government seeking the issuance of death warrants in order to proceed with the executions.
The court had, upon being informed earlier this month that Akshay had filed a review petition before the Supreme Court, adjourned the hearing until after the top court had pronounced its verdict.
On Wednesday, the court in Patiala House directed authorities in Tihar jail to find out, within one week, whether the four death row convicts intended to file mercy pleas against their executions to the President of India.
The court also said it would wait for the copy of the SC order, and then adjourned the hearing for January 7, 2020.
While it is widely expected that the legal process in this case would progress swiftly, there have been several instances in the past when death row convicts have had to wait for the warrant of execution for years.
In 2014, in a landmark judgment, the Supreme Court ruled that unexplained delay in execution can be a ground to commute death penalty.
What happens after a death warrant is issued?
The death warrant decides the date of carrying out the execution. However, in many cases, the warrants are kept in abeyance by jail officials.
The warrant of execution, commonly referred to as a “black warrant” can be challenged if the trial court has violated conditions laid down by the Supreme Court.
In ‘Shatrughan Chauhan & Anr v Union of India & Ors’ (2014), the Supreme Court laid down guidelines including that the death row prisoner must be given a minimum of 14 days’ notice to prepare himself mentally for the hanging.
Additionally, the court said that the convict must also be given adequate legal aid to help him draft mercy pleas — and, if it is rejected, his family be told about it.
The physical and mental health of the death row prisoner must also be taken into account before the execution, and the convict should be hanged only if prison officials are satisfied that he is healthy.
What are the other rights of a death row convict?
After a trial court awards a death sentence, the verdict has to be necessarily be confirmed by the High Court. The death sentence cannot be executed until the High Court has confirmed the verdict.
In cases where a convict who has been awarded the death sentence does not file an appeal before the High Court, even then the sentence cannot be implemented until the time granted for filing an appeal lapses.
In cases where the High Court confirms the death sentence, the convict still has the right to move the Supreme Court. In cases where the High Court decides in favour of the convict, the state can move the top court in appeal.
If the Supreme Court also upholds the death sentence, then the convict has the right to seek a review of the ruling.
In 2014, a Constitution Bench of the court ruled that review petitions in death row cases have to be necessarily heard in open court, and the court would have to debate both the grounds for conviction and the quantum of sentence.
Earlier, such cases were heard in chambers of judges, and no reasons were assigned for dismissing them.
And what is a curative petition?
As a last legal resort, the option of filing a curative petition is also available to the convict.
This option does not find mention in law, and it is an innovation made by courts to have a final opportunity to correct a judgment that could be erroneous.
However, the scope for filing a curative petition is very narrow, and the court has to be satisfied that there would be grave injustice if the verdict is implemented.
What about clemency?
Under Articles 72 and 161 of the Constitution, the President of India and Governors respectively have the power to “grant pardons, reprieves, respites or remissions” of punishment awarded by the courts.
However, inordinate delays in deciding mercy pleas can also be a ground for courts to commute the sentence.
Technically, since mercy pleas are “powers” exercised by constitutional functionaries, it is not deemed to be a right of the convict.
So, a trial court can issue a death warrant even when a mercy plea is pending. Alternatively, a mercy plea can be filed a number of times, including after the death warrant has been issued.
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