here was jubilation January 7 when the Tees Hazri Court of Delhi issued death warrants against the Nirbhaya-case convicts and fixed the time and date of their execution as 7 am, January 22. Parents of Nirbhaya, especially mother Asha Devi, felt the execution would help her daughter’s soul finally rest in peace. But January 17, as a result of the convicts’ clever manipulation of legal procedures, the trial court issued a fresh death warrant deferring the date and time of their hanging to 6 am February 1.
Asha Devi feels helpless and frustrated about the snail’s pace at which the justice system is moving and the crooked, but legally sanctioned, dilatory-tactics being adopted by the convicts. But the justice system is blind to the trauma of the mother.
The Delhi Jail Manual, 2018, has a rule that provides for a 14-day gap to be provided to a convict from the date his or her mercy plea is rejected by the President of India to the day of hanging. Accordingly, because the mercy petition of Mukesh Singh, one of the four condemned prisoners, was rejected January 17, another 14 had to be given to the convicts before they were hanged.
Additional Sessions Judge SK Arora of Tees Hazri Court issued a fresh death warrant to all four convicts, although the other convicts had not filed curative petitions; they, too, cannot be hanged on January 22, as the jail manual has a provision that says all four co-convicts must be hanged simultaneously. Now it is obvious that even February 1 may not be the day of the hanging. If the other convicts file curative petitions before the Supreme Court and file mercy petitions before the President one after another, the execution of the death sentence can be delayed by another 42 days.
Such absurd and irrational provisions of law mock at our justice system. The two-Judge Bench of Delhi High Court comprising Justice Man Mohan and Sangeeta Dhingra Sehegal commented: “Then your rule is bad if you can’t take action till all the co-convicts have moved mercy plea. It seems there has been non-application of minds (while framing the rules). The system is suffering from cancer.”
Reprimanding the Delhi Government and Tihar jail authorities for their negligence in issuing notices to the convicts after the Supreme Court rejected the review petition July 9 last, the Bench warned: “Put your house in order. Your house is in disarray. The problem is, people will lose confidence in the system. Things are not moving in the right direction. The system is capable of being exploited and we see a stratagem to exploit the system, which is oblivious about it.”
Political interference and dilatory tactics with political motives are not new in India. The high drama preceding the hanging of Afzal Guru and Yakub Memon are glaring examples of this fact. Afzal was a kingpin in the Parliament Attack of December 13, 2001. But he could not be hanged for 8 years owing to political manipulation. The delay was justified by raising the bogey of possible violence and communal riots. Fortunately, the then newly elected President Pranab Mukherjee brushed aside apprehensions and rejected Guru’s clemency petition. Guru was hanged February 9, 2013.
Yakub Memon was the last to be hanged in India. He was convicted in the 1993 serial-bombings in Mumbai (then Bombay) and was arrested in August 1994. After a tiresome trial for 13 years, the TADA Court of Mumbai convicted him and pronounced the death sentence in 2007. Memon appealed directly before the Supreme Court the same year and after another 6 years, the SC dismissed the appeal and upheld the conviction and sentence in 2013. His review petition was also rejected the same year by the SC. He filed for clemency before the President in August 2013, which was rejected in April 2014. Then a two-Judge Bench of the SC in June 2014 stayed the hanging on the grounds that the review petition was heard in the chamber instead of an open court. The SC then took another 10 months to hear and dismiss the review petition in April 2015.
The Maharashtra government issued death warrant against Memon, April 30, 2015, and set July 30, 2015, as execution-day. Memon filed curative petition before the Supreme Court May 22, 2015, which was rejected July 21, 2015. Then he filed mercy petition before Governor of Maharashtra and a writ before the SC to stay the hanging. Meanwhile eminent persons, politicians and celebrities pleaded for pardon to Memon. The convict filed a fresh writ petition July 8, 2015, before the SC challenging the rejection of his curative petition. On July 29, an urgently constituted larger SC bench heard and rejected the writ petition.
Memon’s prayers again to the Maharashtra governor and the President for mercy were rejected but Memon’s lawyers continued to petition the SC even after midnight to allow a stay of 14 days according to the Satrughan Chauhan vs Union of India case (2014). In a historic sitting, the SC started an open hearing at 2.30 am, July 30, 2015, which ended at 5 am. The SC dismissed Memon’s plea, stating: “It is an expose of the manipulation of the principle of rule of law”.
Such judicial drama is being re-enacted in the Nirbhaya case as well. In a modern, civilised society, a person should be deprived of his life or personal liberty strictly according to procedure established by law. In the case of a death sentence, the convict must be offered all legal avenues before he is executed, because a legal error can’t be rectified after the hanging. But that does not mean convicts of heinous crimes should be allowed to play hide and seek by exploiting legal loopholes. That mocks justice and shakes credibility of the justice system. It is high time we rid law of such erroneous provisions.
The writer is an advocate based in Bolangir.