Why Nirbhaya killers cannot be hanged separately,

February 2, 2020

Two Supreme Court judgments pronounced in 1982 and 2014, when read collectively, say that none of the four death row convicts in Nirbhaya case can be hanged before the last one has exhausted all legal options including the mercy plea. There must be a difference of 14 days between rejection of mercy plea and hanging.

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- Prabhash K Dutta
New Delhi
January 22, 2020
UPDATED: January 22, 2020 15:49 IST

Nirbhaya convicts unlikely to be hanged on February 1

Two Supreme Court judgments pronounced in 1982 and 2014, when read collectively, say that none of the four death row convicts can be hanged before the last one has exhausted all legal options including the mercy plea. There must be a difference of 14 days between rejection of mercy plea and hanging.

HIGHLIGHTS

Two of the convicts in Nirbhaya gangrape and murder case have not filed curative petition
Mercy petition of only one death row convict has been rejected
SC judgments indicate death row convicts cannot be hanged until all of them have exhausted all options

As of now, February 1 is the date for hanging all four convicts in the Nirbhaya gangrape and murder case. Nirbhaya, a paramedic student aged 23, had been gangraped and fatally injured by six including a juvenile.

One accused was found dead inside Tihar Jail in Delhi. Police said he committed suicide. The juvenile was sent to reformation home for three years. The rest four were convicted and awarded death sentence.

February 1 is the second date fixed for carrying out the death sentence. The previous date was January 22 but the death warrant could not be executed as some of the accused used legal options, moving curative petition in the Supreme Court and mercy petition to the President.

Two convicts, Mukesh Kumar Singh and Vinay Sharma, have exhausted their legal recourse of curative petition. Mukesh Kumar is the only one whose mercy petition has been rejected by President Ram Nath Kovind.

Vinay Kumar's case is intriguing. A mercy plea was moved before the President in his name last year. With social media discussing delay in disposal of his mercy plea, Vinay Kumar claimed he never moved such a petition. Calling it a conspiracy by jail authorities, Vinay Kumar sent a letter to President Ram Nath Kovind. Now, both the controversial mercy plea and Vinay Kumar's letter are with the President.

The other two, Pawan Gupta and Akshay Kumar Singh, have not yet filed a curative petition. Lawyers representing them have said the curative petition will be filed against the judgment confirming death sentence. Speculation is rife that separate curative petitions will be filed by Pawan Gupta and Akshay Kumar Singh.

This means the death warrant for February 1 is highly unlikely to be executed. Two Supreme Court judgments and Tihar Jail manual provide for the legal reasons for at least one fresh death warrant.

In 2014, the Supreme Court in Shatrughan Chauhan case delivered a milestone judgment providing that a death row convict cannot be hanged before expiry of 14 days since rejection of his/her mercy petition by the President.

The Supreme Court said the convict must be given enough time for challenging the rejection of mercy petition on certain grounds, particularly that of inordinate delay in deciding the plea.

The Tihar Jail manual too says that a death row convict should be given a 14-day time before he/she is executed. This means that road has been cleared for hanging of Mukesh Kumar Singh.

Not really.

HANGING CANNOT HAPPEN SEPARATELY

There is another verdict of the Supreme Court that comes into play. In 1982, the Supreme Court in Harbansh Singh vs State of Uttar Pradesh case had decided that death row convicts involved in one incident of crime could not be hanged separately.

It was a case in which four persons had been killed in Uttar Pradesh. There were four accused. One of the accused died in a police encounter. Three others were convicted and sentenced to death. The convicts were Jeeta Singh, Kashmira Singh and Harbansh Singh.

All three convicts moved review petitions separately. The Supreme Court commuted the death sentence of Kashmira Singh into life imprisonment. Petitions of Jeeta Singh and Harbansh Singh were rejected.

Jeeta Singh and Harbansh Singh were to be executed on the same day in 1981. Harbansh Singh moved a mercy petition to the President. Jeeta Singh was, meanwhile, executed on the fixed date.

The President rejected the mercy petition of Harbansh Singh following which he challenged it in the Supreme Court arguing why different quantum of punishment for the same crime in the same incident.

The Supreme Court bench admitted that a mistake had been made in the case. It made it mandatory for the jail superintendent to inform the court promptly if sentence of any of the death row convicts has been commuted in a case.

In this direction is hidden the provision that no death row convict could be hanged before all the convicts have exhausted all legal options available to them. It would only then it would be known that death sentence of any of the convicts has not been commuted by the courts or the President.

Read | Hang them one by one: Nirbhaya's mother says convicts toying with law

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