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Legal Tactics or Due Process of Law

Friday, February 14, 2020

/ by Satyagrahi
A Delhi court on Feb. 12 offered a counsel to Pawan Gupta, one of the four death row convicts in the 2012 Nirbhaya gang rape and murder case, saying a convict is entitled to legal aid till his last breath. The date of execution, first fixed for Jan. 22, was postponed to Feb. 1 before the trial stayed it "till further orders". The condemned four have been using delay tactics to postpone their inevitable fate. But these tactics are legally available to them.

What is the status of the death warrants?
Death penalty has been held to be a valid form of punishment in India by the Supreme Court. But can convicts inordinately delay their execution by using procedural loopholes in the law? The answer, as the Nirbhya case suggests, is an emphatic yes.

A Delhi court on Feb. 12 offered Pawan Gupta, one of the four death row convicts in the Nirbhaya gang rape and murder case, legal aid after he said that he does not have a lawyer. Additional Session Judge Dharmender Rana expressed displeasure over delay from Pawan's side who said he has removed his earlier lawyer and will need time to engage a new oneDistrict Legal Services Authority (DLSA) provided Pawan's father with a list of its empanelled advocates to choose from.
Pawan has not yet filed a curative petition - the last and final legal remedy available to a person which is decided in-chamber. He also has the option of filing a mercy plea. Nirbhaya's parents and the Delhi government had moved the court on Feb. 11 seeking fresh death warrants for the four convicts after the Supreme Court granted liberty to the authorities to approach the trial court for issuance of fresh date for the execution of these convicts.

The date of execution, first fixed for January 22 in Tihar jail, was postponed for 6 am on February 1 by a January 17 court order. The trial court later, on January 31 stayed, "till further orders" the execution of the four convicts in the case, who are lodged in Tihar Jail. The Tihar jail authorities had filed a status report on Feb. 11 before the trial court stating that no legal option was exercised by any convict - Mukesh Kumar Singh (32), Pawan Gupta (25), Vinay Kumar Sharma (26) and Akshay Kumar (31) - in the last seven-day period, granted by the Delhi High Court.

The trial court had on February 7 dismissed the pleas of Delhi government and the Tihar jail authorities seeking fresh date for execution of the four death row convicts in the case. They had taken note of the high court's February 5 order permitting the convicts to exercise their legal remedies within one week. "It is criminally sinful to execute the convicts when law permits them to live. The High Court on February 5 has permitted the convicts, in the interest of justice, to exercise their legal remedies within one week from same order," the court had said.
"I concur with counsel for convicts that death warrants cannot be executed merely on basis of surmises and conjectures. The application is bereft of merit. The same is dismissed. The State is at liberty to move appropriate application as and when required," the judge had said.

Why are the four still alive?

The trial took a long time to reach the final conclusion
The 23-year-old physiotherapy intern, who came to be known as 'Nirbhaya' (fearless), was gang-raped and savagely assaulted on the night of December 16, 2012, in a moving bus in South Delhi. She died of her injuries a fortnight later in a Singapore hospital.
Six people - the four convicts, Ram Singh and a juvenile - were named as accused. The trial of the five adult men began in a special fast-track court in March 2013. Ram Singh, the prime accused, allegedly committed suicide by hanging himself in Tihar jail days after the trial began.
The juvenile, who was said to be the most brutal of the attackers, was put in a correctional home for three years. The juvenile was released in 2015 and sent to an undisclosed location amid concerns over a threat to his life. He, when released, was 20 years old. Mukesh, Vinay, Akshay and Pawan were sentenced to death in September 2013 by the trial court. It took four more years for the case to move from the trial court to the high court to the apex court. Each time, the verdict was the same: death.

In its Feb. 5 order, the Delhi High Court was critical of the delay caused by the authorities in seeking issuance of death warrants for the convicts as also of the "delay tactics" adopted by the convicts"All the authorities concerned were sleeping" and waited till December 2019 "for reasons best known to them" to seek issuance of death warrants, the high court said.
The Delhi government moved the trial court for issuance of black (death) warrants two years after the Supreme Court in 2017 had dismissed the review petition against the confirmation of death penalty. The authorities had also informed the court about the Delhi High Court's February 5 order which directed the convicts to take steps within a week, if they wished, to avail any remedy available under the law.
Pawan Jallad, a third generation hangman from Meerut prison, had arrived in Delhi on January 29. He was 23 years old when he first assisted his grandfather with a hanging in 1988 at the Patiala Central Jail. Now, he was two days away from the most publicised hanging of his career. But even as he tested the strength of the rope and put aside cloth bags to cover the heads of the convicts, news arrived that the four accused in the 2012 Delhi gang rape case will escape the hangman's noose, yet again. Jallad is still waiting.

When was the horrible crime committed?
Reacting to a tweet by ace lawyer Indira Jaising urging her to forgive the four men on death row for brutally raping that finally took her life, Nirbhaya's mother said on Jan. 17: “Even if God asks me, I won't forgive them.” The crime they committed is not worthy of mercy. And they have lived for more than seven years after India rose to demand swift death to the gang-rapists and killers.

In the early evening of 16 December (a Sunday) Pawan Kumar, a fruit vendor, Vinay, a gym instructor, Mukesh, Ram Singh’s younger brother, Akshay Kumar Singh, a cleaner on Ram Singh’s bus, and a juvenile whose name was never officially revealed as per the law of the land, met in his slum house and had a small ‘party’. They decided to set out together in Ram Singh’s bus to have some ‘fun’. They first lured Ram Adhar (aged thirty-five), a carpenter, to board the bus and robbed him of Rs 1500 along with his other belongings and dumped him near IIT Gate. They then drove towards Munirka from where they picked up a hapless couple.
Awindra Pandey, an engineer, and his friend who was named Nirbhaya by the media (until her family decided to reveal her name), a physiotherapy intern, had gone to the Select City Walk mall in Saket in south Delhi to watch a movie. After the show they exited the mall at around 8.30 p.m. Unable to get an autorickshaw to Dwarka, where they lived, they took one to the Munirka bus stand from where they hoped to get a bus that would take them to their destination.

After a while, they saw a white bus with yellow and green stripes on its sides approach them and stop right where they stood. It was a private chartered bus — generally not authorized to ply on commercial routes — from which a young boy was calling out for passengers going to Dwarka and Palam Mod. Awindra and Nirbhaya, unsure of when the regular bus would come and anxious to reach their homes before it got too late, decided to board the private bus. Little did they know they had boarded a bus to hell.
As they took their seats they saw three unkempt youngsters sitting in the driver’s cabin with the driver, while two others sat right behind in the front row of passenger seats — one on the left and the other on the right end. There were no other passengers in the bus. Instinctively, the young couple felt that something was not quite right.
One of the two seated in the front passenger seats walked towards Awindra, ostensibly to collect the bus fare. They paid twenty rupees between them. It dawned on them that the bus had not waited for any other passenger to board and had left with only the two of them, soon after they had got in. Strangely, the bus had curtains that were all drawn to ensure that nothing outside was visible to them. The door they had come in through had been locked from the inside after they had boarded.

As the bus drove towards Dwarka and reached the flyover leading to the airport, the three boys emerged from the driver’s cabin. They began to abuse Awindra, asking him where he was taking the girl so late in the night. Nirbhaya and Awindra retaliated to the verbal and physical abuse hurled at them. In the commotion that ensued, they heard one of the goons call out the names Vinay and Pawan, commanding them to bring out iron rods. Soon Awindra was hit on the head and legs with iron rods and he fell to the floor of the bus.

Nirbhaya shouted for help and tried calling the police on her mobile. She was pushed to the rear end of the bus and then pinned down on a passenger seat meant for three, where all six men took turns to rape her. As ‘punishment’ for her fierce resistance, she was hurt grievously with iron rods in ways so gory and sordid that it is difficult to put it in writingShe fainted a couple of times, but was beaten back to consciousness to undergo more unspeakable indignities.
She too was robbed of her belongings and was stripped naked. Having satisfied themselves, the men decided to get rid of the injured couple, and if possible, kill them. Awindra heard one of the assailants say that the couple was not to be left alive. A naked Nirbhaya was dragged by her hair to the front door and thrown out along with her companion, who was also without a shred of clothing on him. The bus tried to reverse and crush them to death but somehow the two managed to roll away and escape.
Awindra would live. Nirbhaya would die of her injuries, but not before testifying against the accused. And not before putting down her last wish in writing. In her four-page statement in Hindi to the magistrate five days after the barbaric attack on her, the 23-year-old paramedical trainee, who was admitted to a city hospital in a critical condition, pleaded with the authorities to "burn them alive""They should be hanged so that such an incident does not happen with another woman. They should be burned alive," the young woman, who died Dec 29, 2012 at a hospital in Singapore where she was flown by the government after a national outcry and massive protests, said in the statement.

Where are these tactical delays coming from?
In yet another horrific incident of burning and murder, a college lecturer in Wardha, Maharashtra, died on Feb. 10 after she was attacked by a stalker. The victim was walking to her college from a bus stop when her attacker hurled petrol at her and set her on fire in full public view. The incident has caused much outrage and now Maharashtra chief minister Uddhav Thackeray has said that the trial in the case will be carried out speedily.

But such promises of speedy trials do not inspire anymore. Case in point is the Nirbhaya gang rape and murder case that has dragged on for more than seven years. If such a high profile case can take so long to find closure, then it’s anybody’s guess how long lower profile but equally gruesome cases will take to see justice. Speedy trials should mean completion of the judicial process within a reasonably short time frame encompassing a clean appeals process.
So far as the delay on the part of the state is concerned, the Supreme Court has already ruled that a convict can’t be kept waiting for the gallows and inordinate delay in his/her execution is a ground for commuting the death penalty to life sentence. In Jagdish vs. State of Madhya Pradesh (2009), the Supreme Court ruled that the government’s failure to decide a mercy plea within a reasonable timeframe can be a ground for commuting the death penalty to life imprisonment. The State’s failure in taking expeditious decision amounted to violation of condemned prisoners’ right to live with dignity guaranteed under Article 21 of the Constitution, it had said.
“There can be no justification for the execution of a prisoner after much delay…the cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the de-humanising effects of the lengthy imprisonment prior to execution…What makes it worse for the prisoner is the indifference and ennui which ultimately develops in the family, brought about by a combination of resignation, exhaustion, and despair,” the top court had said.

But this is not a case of just the government delaying the execution of death sentence. This is about first the government delaying and then the four condemned using their legal options one by one, with sufficient pause between each attempt. By its judicious verdicts, the Supreme Court has managed to check arbitrariness on the part of the State. However, with the four convicts in the Nirbhaya case delaying their execution by strategically availing of their legal and constitutional remedies one by one, the Centre has moved the Supreme Court, saying the court’s rulings in death penalty cases are convict-centric and that it should lay down a set of victim-centric guidelines.
The Centre has urged the top court “to clarify and direct that if the convict of death sentence wants to file mercy petition, it would be mandatory for a convict of death sentence to do so only within a period of seven days from the date of receipt of death warrant issued by the competent court.”

It’s not an easy task to get a guilty verdict in a capital crime. Originally, for offences where the death penalty was an option, Section 367(5) of the Code of Criminal Procedure (CrPC) 1898 required courts to record reasons where they decided not to impose death sentence. In 1955, Parliament repealed Section 367(5), CrPC 1898, significantly altering the position of the death sentence. The death penalty was no longer the norm, and courts did not need special reasons for why they were not imposing the death penalty in cases where it was a prescribed punishment.
When the CrPC was re-enacted in 1973, Section 354(3) required courts to record special reasons for awarding death sentence. Further, Section 366 of CrPC mandates that the convict shall not be executed unless the death sentence is confirmed by the high court concerned. In case the convict’s death sentence is confirmed by the high court, he/she can challenge it before the Supreme Court in appeal. After dismissal of his appeal, he has the option of filing a review petition and then a curative petition. Thereafter, the convict can file mercy petition before the president under Article 72 of the Constitution. Even the dismissal of mercy petition by the President can be challenged before the Supreme Court.

As pointed out by the Centre, it’s not that the convict doesn’t get enough opportunity to prove his/her innocence. But the real question is about finality of death penalty. Noting that finality of death penalty was extremely important; Chief Justice of India SA Bobde had last month said a condemned prisoner should not be under impression that it was an open-ended question.

Who needs to revisit the review process for death sentence?
The petition filed by the Centre seeks to limit the time provided for filing curative petition by the convict, curtail notice period to convict and his/her family from 14 days to 7 days, and impose a time limit on the procedure to be followed in case of multiple convicts facing death penalty. The petition provides the Supreme Court with a golden opportunity to strike a balance between the rights of accused and the rights of a victim to seek justice. These are the three issues worthy of discussion:

1) The first clarification sought in the petition is regarding the time limit within which a death row convict should file a curative petition, if he chooses to.
The concept of curative petition can be traced back to the Apex Court’s Constitution Bench judgment in Rupa Ashok Hurra v. Ashok Hurra. The power, however, is to be exercised only in rarest of the rare cases.
Curative petition is the last constitutional remedy a person can avail once his review petition has been rejected by the Supreme Court. However, no time limit has been fixed within which a curative petition should be filed. A clarification on this aspect shall not only help the State in its swift execution of the punishment, but shall also help convicts in availing an available remedy in a time-bound manner.
As seen in the Nirbhaya case, convicts continue to file curative petitions post issuance of death warrants. This creates inordinate delay in the justice system and also works towards wastage of state resources. A time-bound filing of curative petition shall help in preventing unnecessary delays and increase executive and judicial efficiency. Hence, it would be welcome to see the apex court take a step in this direction by making curative petitions time bound. In fact, it should be ensured that curative petitions remain time bound not in cases of death penalty, as sought in the petition at hand; but a time limit is extended to curative petitions in general to make sure speedy delivery of justice.

2) Second, the petition seeks to limit the time gap from date of communication of rejection of mercy petition to the date of execution from 14 days to 7 days.
The reason for providing such time period is more based in morality than legality. Compassion dictates that a death row convict should be allowed time to mentally prepare for the impending punishment, and to have a final meeting with his/her family members, considering that they could have to travel from remote locations. It also has legal implications such as providing time to make a will and to avail any remaining judicial remedy.
Though limiting the time period could work towards speedy execution of death penalty; it would not serve the interest of justice. Justice to the accused/convict is as important as justice to the victim. Curtailment of time period might lead to situations where the death row convict is unable to exercise the rights otherwise provided to him and that shall amount to violation of just, fair and reasonable requirement under Article 21 of the Indian Constitution.

3) Last, the petition seeks that in cases having multiple death row convicts, execution of penalty of a convict who has exhausted legal remedies should not be delayed merely because any of the co-convicts has initiated pardon proceedings. It is urged that the Apex Court mandate issuance of execution warrant by competent Court within seven days of rejection of mercy petition and execution of death sentence within seven days thereafter.
As on date, legal practice is that if one of the convicts has moved a mercy petition, or a review petition or a curative petition, the death penalty of any his co-convicts shall not be executed until a decision has been taken on such petition. It is argued that death row convicts prolong execution by exercising their legal remedies one after another.

As the law provides for a 14-day period between date of rejection of petition and execution of penalty, it gives ample time to another co-convict to move forward with his mercy petition, thus delaying execution. This can be seen from the Nirbhaya case, where due to pendency of petitions, death penalty of even those convicts who have exhausted all legal remedies could not be executed.

However, the demand for segregated execution comes with its own set of problems. The case of Harbans Singh v Union of India is a perfect illustration of the situation, where three people were awarded death sentence in a murder case. The three convicts filed mercy petitions at different stages, and proceeded with legal remedies separately. Out of the three, death penalty of one of the convicts was commuted to life sentence, which was later used by another convict as argument to get his sentence commuted. However, the third convict who did not file a review petition had already been hanged. The Apex Court writing through Justice YV Chandrachud expressed deep regret on the matter, calling the situation unfortunate.

Convicts of the same offence having participated in it with the same magnitude cannot be treated differently, unless special circumstances exist. A situation where one person faces death for his offence, while the other is commuted or pardoned, is in itself a defeat of the entire justice system. It is to prevent a similar situation from occurring that the execution of all co-convicts is stayed if decision on any one’s petition is pending.

It would be exceedingly unfortunate if laws were framed solely to decrease delay.

How rarely does India use death penalty?
In the last two decades, India’s execution rates have reduced drastically.
Article 21 of the Constitution of India guarantees to its citizens the right to life and personal liberty which includes the right to live with dignity. According to this article, no person shall be deprived of his life and personal liberty except according to the procedure established by law. This means that a person’s life and personal liberty can be disputed only if that person has committed a crime. Therefore the state may take away or abridge even right to life in the name of law and public order following the procedure established by law.
While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has upheld the constitutional validity of capital punishment in the “rarest of rare” cases. In Jagmohan Singh vs State of UP (1973), then in Rajendra Prasad vs State of UP (1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

The principles as to what would constitute the “rarest of rare” have been laid down by the top court in the landmark judgment in Bachan Singh vs State of Punjab (1980)Bachan Singh formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely left upon the court’s discretion to reach this conclusion.

The Supreme Court has always said that the death sentence should be given rarely. In Mithu vs State of Punjab (1983), the Supreme Court ruled that the mandatory death penalty is unconstitutional. It struck down Section 303 in the Indian Penal Code (IPC), which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case. The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murderes. It said all murders would come under the ambit of Section 302, where a court would have the discretion to award life term or death sentence.

The apex court has also laid down the principle of weighing aggravating and mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered.First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?
The answers to these two questions in the Nirbhaya case are: Yes and Yes.

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