On 17 January 2013, fast track court began proceedings in the Nirbhaya gang-rape case. On September 10, almost 7 months after the trial began, all four convicts were found guilty of rape and murder and three days later awarded capital punishment. Due process of law was followed, in which the accused could use their judicial remedies to appeal and approach the Supreme Court against the verdict. Supreme Court upheld the death sentence on 5 May 2017, terming the case ‘rarest of the rare’.
It took 1,569 days to complete trial in Nirbhaya case from the fast track court to the Supreme Court. By law, review petitions should have been filed 30 days after the judgement, but exceptions are granted in case of genuine reasons. This loophole was duly exploited by all four convicts. The last review petition was filed by Akshay Thakur in Supreme Court on 10 December 2019, 950 days after the SC verdict. It is hard to comprehend what ordeal a death-sentenced convict was undergoing to allow a 950 days delay in filing his review petition in court.
What has followed henceforth is wrongful delay of justice through tactical litigation and blatant misuse of judicial machinery. Finality in the case should have been achieved with the Supreme Court verdict. What we have seen so far is how provisions of law have been misused and hands of judiciary being tied because it is ‘’all within the ambit of law”.
Curative petition was created by Supreme Court to prevent abuse of the process of law and miscarriage of justice. This has proved to be contrary in this case. Guidelines laid down to file curative petition do not specify time limit but provide a reasonable time should be followed.
All convicts except Pawan Gupta filed their curative petitions after death warrant was issued against them on 7 January 2020. Mukesh Singh filed his curative petition 550 days after his review petition was rejected. Vinay Sharma and Akshay Thakur filed their curative petitions 549 days and 42 days after their review petitions were rejected.
It should also be noted that convict Pawan Gupta filed petitions claiming he was a minor at the time of the crime on December 16,2012 during the trial. His plea was rejected by the trial court on December 21,2018, by Delhi High Court on December 19,2019 and by the Supreme Court on January 20,2020. He filed a review petition against the Supreme Court verdict on January 31, a day before his execution on 1 February.
The Delhi Jail Manual 2018 states that in case of more than one convict punished for the same crime, execution cannot be carried out separately till all convicts have exhausted their legal remedies. All four convicts have used this provision to delay their execution, filing one petition after another.
The convicts were originally ordered to be executed on 22 January 2020. Mukesh Kumar filed his mercy petition on 14 January 2020, just 8 days prior to his execution. Execution of the death warrant did not take place, pending decision on the mercy plea.
A second death warrant was issued on 17 January directing execution of all four on 1 February. Akshay Thakur filed his curative petition on 28 January, 4 days prior to his execution. On January 31, Delhi trial court suspended the death warrants issued against all four convicts pending the decision on the mercy petition filed by Vinay Sharma and Akshay Kumar.
To err is human and in case of death sentences, safeguards have been laid down so that there is no room for mistakes. However, when the said safeguards are used as a means of tactical litigation to delay the process of law, it only frustrates the people and their faith in the judiciary.
The defence counsel cannot be judged for performing his duty of defending his clients. The entire episode only brings to our notice the many loopholes our system suffers from. Not only the judiciary but the authorities are also at fault for this travesty of justice. An introspection of our entire judicial law is the need of the hour. Law should now mandate filing of review, curative and mercy petitions in a time-bound manner and strict adherence to this time limit.
If convicts for same crime cannot be hanged separately, they should be given a window period in which all of them have to use their legal remedies. After exhausting their legal options, death warrant should be issued. If any of them do not use their legal options within the stipulated time period, it should be deemed that his right to file petition has been waived off by choice. Such a strict direction will only discourage convicts from adopting delaying tactics in the future.
Since the trial commence in the fast track court on 17 January 2013 till the issuance of the third death warrant on 17 February 2020, 2587 days have lapsed. 2587 days and counting, till we can say justice has been served.