JUSTICE DELAYED BUT NOT DENIED

The Author of this article is Ms. Shriya Pandey who is pursuing B.A. LL.B. (Hons.) from Law School, Banaras Hindu University. She is an avid reader and writer. She is currently serving as a member of Editorial Board of Droit Penale Newsletter.

It was the 20^th day of March, 2020 when the whole nation overwhelmed with joy when the news of hanging those 4 convicts who gruesomely raped and murdered Nirbhaya in the year 2012 came out. It was after almost 8 years that justice is given to the family of victim. There were total 6 convicts in which one was juvenile and the other committed suicide while he was in prison.

The judgment came in 2017 itself but the execution was delayed by proposing multiple remedies by each of the convicts to distract the criminal justice system from its very aim.

From the judgments given in these period of time, it can safely be concluded that there exists an inclination towards reformative theory of punishment however the Nirbhaya case followed the approach of a deterrent theory of punishment as this case was an example of 'rarest of the rare case'.

This case brought tremendous changes in the criminal law of India. An amendment was made in 2013 namely The Criminal Law (Amendment) Act, 2013 which introduced death penalty for repetitive rape offenders. Several other changes were made to :

• Indian Penal Code, 1860

• Code of Criminal Procedure Code, 1973

• Indian Evidence Act, 1872

• Protection of Children from Sexual Offences Act, 2012

NIRBHAYA TIMELINE FOR EASY REVIEW:

DATE & EVENT ASSOCIATED

16 Dec, 2012 -Gruesome bestiality on the girl

2 Jan, 2013- Fast track court set up for speedy justice

31 Aug, 2013- Juvenile Justice Board convicts the juvenile for 3 year term. Later he is released in 2015.

10 Sep, 2013- Court convicts 4 of the offenders

13 Sep, 2013- Death penalty to all 4

15 march, 2014- SC stays execution of all 4 in later period

3 Feb, 2017- SC started scrutinizing the matter of death penalty afresh

5 May, 2017- SC upholds death penalty

8 Nov, 2017 to 19 Mar, 2020- Filing of various legal remedies by the convicts in order to extend the day of hanging.The convicts were successful in delaying the procedure by almost 3 years.

WHAT WERE THE REMEDIES TAKEN BY THE CONVICTS TO CAUSE DELAY

• REVIEW PETITION

A Review petition is filed to review the rulings to correct a patent error. A review is not an appeal in disguise. Any person aggrieved by such ruling can seek a review. The grounds for review are- discovery of new and important evidence; Mistake/error apparent on the face of record; any other sufficient reason.

The concept gets its power from A.137 of the Constitution. It is only after the review petition fails that the party can file curative petition.

• CURATIVE PETITION

A Curative petition takes into account ‘whether an aggrieved person is entitled to any relief after the final order/judgment is passed by the SC after the dismissal of review petition. The concept gets its power from A.137 of the Constitution. A Curative petition may be filed after the dismissal of review petition. The Curative Petition is a construction which is based upon a Latin maxim “actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one.

• MERCY PETITION

Mercy petition is the last legal recourse available to the convicts. In the Nirbhaya Case, the Tihar Jail Administration had asked the convicts to apply for mercy petition to the President of India under the A.72 of the Constitution. It is essential to note that before filing for mercy petition, the death sentence must be confirmed by the HC. There is no written procedure to deal with mercy petition.

WHAT IS DEATH WARRANT

Death warrant is also known as Black warrant or Form no. 42 which identifies the convict who has to be hanged, the day of his or her death penalty and the court which confirmed the sentence. 

TACTICS PLAYED BY CONVICTS TO DETER THE DEATH SENTENCE

In May, 2017, when the SC upheld the death penalty to 4 convicts, all of them tried to delay the process by filing various remedies in the Court.

•  Firstly, it was Mukesh who sought Review of its verdict confirming the death penalty.
•  Secondly, Vinay & Pawan sought Review.
• Thirdly, SC dismisses review pleas of all three convicts.
• Fourthly, Akshay sought review of his death penalty.
•  Fifthly, SC dismisses Akshay’s plea.
• Sixthly, The Delhi Court directs Tihar Jail Administration to issue notice to convicts to avail their remaining remedies.
• Seventhly, Pawan claims that he was a juvenile at the time of offence. Later, SC  dismisses Pawan’s plea that he was a juvenile
• Later, Pawan’s father seeks FIR against a sole witness for allegedly deposing falsely. However, the court dismisses his complaint.
•  Then, Delhi Court issues death warrant against the 4 convicts.
•  Mukesh & Vinay files Curative Petition. SC rejects it.
• Then, Mukesh files Mercy Petition before the President. The President rejects it.
•  Mukesh moves SC against the rejection of mercy plea. Later, SC rejects it too.
•  Now Akshay moves to SC with the Curative Petition. SC dismisses his plea.
• Vinay moves to SC for challenging rejection of his mercy plea.
• Pawan refuses lawyer from DLSA as legal aid.
• Vinay claims mental illness but this claim is rejected by the SC too.
• SC dismisses Vinay’s plea challenging the rejection of mercy petition.
•  Mukesh refuses to be represented by Advocate Vrinda Grover.
• Pawan files for Curative Petition. SC dismisses such plea. He then files for Mercy plea.
• Mukesh moves SC for restoration of his legal remedies.  
• Pawan moves Court on the reason of prison assaults.
• Pawan’s  father moves HC against the rejection of his complaint.
• Vinay moves Court claiming procedural lapse in his mercy plea rejection.
• SC rejects Mukesh’s plea of restoration of legal remedies.
• Three death row convicts move International Court of Justice seeking stay on execution.
• Mukesh moves Court seeking quashing of the death penalty as he claims he was not in Delhi at the time of offence.
• Pawan files for fresh Curative pettion.
• Akshay files second mercy petition.
• Mukesh’s plea dismissed.
• SC rejects curative petition of Pawan.
• The Delhi HC dismisses plea of all 3 convicts. The convicts were hanged at 5:30 am on 20^th March, 2020.

     CONCLUSION

At last, I would like to quote Swami Vivekanand who said:

“The best thermometer to the progress of a nation is its treatment of its women”

The well being of a nation depends on how the women are treated. It is important to recognise the efforts women make for our country at each level so that our nation can prosper.  The requirement is such that stringent laws must be made as well as implemented efficiently where the wrongdoer cannot escape the clutches of justice at any cost.

Although Justice got delayed by 7 years, 3 months, 4 days, but it is not denied and it will never be denied.