FLAWED JUSTICE AIDS THE CONDEMNED CONVICTS?

Rape accounts for about 12% of all crimes against women in our country. India’s average rate of reported rape cases is about 6.3 per 100,000 of the population. But the problem about rape cases is that about 99% of the cases of sexual violence go unreported which makes it difficult to estimate the actual number of rape cases in our country. These stats make it horrible for a woman to live in such an environment where she can’t even breathe by her choice. Nirbhaya” is the pseudonym used for the rape victim of the infamous 16 December 2012 Delhi gang rape incident. On just another chilly December night in Delhi, Nirbhaya and her friend were returning from a movie theatre, they were waiting for a bus. One of the would-be culprits convinced them to get on an empty bus with tinted windows. They were assaulted by six males, one of whom was a minor, aged 17.

The friend, when he tried to protect Nirbhaya, was beaten up by the perpetrators. Nirbhaya was not just sexually violated; her body was mutilated beyond human imagination. Her intestines were pulled out, and private parts mutilated. She later died of multiple organ failure, internal bleeding and cardiac arrest on the 29th of December.

 The Nirbhaya rape case startled the whole nation. The whole state protested and asked for “Justice for Nirbhaya”. People gathered at India Gate and Jantar Mantar from 21st December 2012 to protest. We used to describe the power of Indian Judiciary, but still we are getting only dates as far as The Nirbhaya case is concerned. Who should be blamed? Our judiciary system is full of loopholes. The whole drama is that how the loopholes in the law are being misused. Recently the last moment mercy petition filed by Pawan Kumar Gupta (one of the convicts) had resulted in the postponement of the execution of all the convicts in the Nirbhaya case until further orders, which was otherwise scheduled to take place on March 3, 2020 at 6 am. The new development of Pawan’s mercy petition persuaded the Additional Sessions Judge Dharmendra Rana of Patiala high court to modify the no stay order passed earlier on Monday to order the deferment of the execution sine die in the evening.

 Article 72 of the Indian constitution grants power to the President of India to grant mercy to some criminal convicts based on certain special circumstances.Article 137 of the Constitution of India, 1950, provides that subject to provisions of any law and rules made under Article145, the Supreme Court has the power to review any judgment pronounced or order made by it, basically it talks about Curative Petition.So, in my point of view these 2 provisions are majorly being misused. The Supreme court quoted, “Any condemned convict must not meet his creator with a grievance in his bosom that the court of this country has not acted fairly in granting him an opportunity to exhaust his legal remedies.” Indirectly it means to say that the Indian Judicial System is against public execution.

As per the guidelines laid down by the Supreme court in the Shatrughan Chauhan case in 2014, the convict must be given time (14 days) to file mercy petitions before the death penalty can be carried out, i.e. the execution cannot be performed until 14 days. Hours after Vinay Sharma saw his mercy plea rejected by President Ram Nath Kovind, another convict Akshay Singh had filled a similar appeal as told by the officials of Delhi’s Tihar jail. 4 men convicted in the 2012 gang rape and killing of a 23-year-old paramedical student in Delhi were to be executed at 6 am on 3^rdMarch, but in late evening of 2^nd March, a Delhi court handed them a last-minute reprieve again. The common question which everyone is asking is why they just don’t hang them separately? Law says that since they have committed the crime together therefore, they would be punished together. The punishment cannot be given separately, because of the Delhi Prison’s Rule.Also, as per the rules a convict must be given 14 days between the rejection of the mercy plea and his execution. The Government of India is also under immense pressure regarding the execution of the convicts. They recently moved to the Supreme Court regarding this issue. The plea by the Governmentof India has sought modification of the guidelines laid down in the 2014 judgement of the Supreme Court in the Shatrughan Chauhan case. The plea requests that a limit should be set out to file a curative petition, while the 14-day period for mercy plea should be reduced to 7 days.

Advocating for two death-row convicts in the Nirbhaya gang rape murder case, lawyer AP Singh, is not only known for his controversial remarks on gender-related crimes but has been repeatedly condemned for using loopholes in the law to defer execution of death penalty. Singh, lawyer of Akshay Singh and Pawan Kumar Gupta, the two of the four convicts in the Nirbhaya case, first became controversial when he criticized the Nirbhaya casevictim’s lifestyle, blaming her for the crime that resulted in her death.A 46-year-old law graduate from Lucknow University, has been practicing in the Supreme Court since 1997. But he shot to fame, or rather infamy, in 2012 when the Nirbhaya rape and murder case went to trial in the Saket court. I now feel that each and every criminal in the country would want AP Singh to appear for them, because if he finds it too easy to go against the entire state in such a high profile case, just imagine how easy it would be for him to fight a normal criminal case. Unfortunately, this is all because of the loopholes we have in the Indian Judiciary System, which is being used by him very smartly. Some may say that it is a fantastic show of Math on his part, but practically speaking it is just an example of human psychology mixed with shrewdness and smartness. Additional Sessions Judge Dharmendra Rana made the observations while noting that there was a delay in filing curative and mercy petition by the death-row convicts, (A part of his game plan). He said, “You are playing with fire. You should be conscious. One wrong move by anybody, and you know the consequences.” AP Singh is just running his business by playing with the loopholes in the Indian Laws. He is not really concerned about the execution of the death penalty of the four convicts. What he really cares about are the ways by which he could stretch this case as far as possible which would gather him more fame and attention, which would be helpful in running his business in the near future, because negative publicity is also a type of publicity. Today by saying that since the convicts are poor, he not charging a single penny from them, tomorrow he would be charging lakhs and crores for the same, NICE STRATEGY SIR! He is just trying to show the world that he has a very sound knowledge as far as the Indian laws are concerned and he can basically take the entire judicial system into a defeat singlehandedly. Unfortunately, the problem is that he is not doing something which is illegal, so one cannot do much about it.

Let’s try to understand the whole process of AP Singh’s game plan.

Firstly, he decided to send the mercy petitions of each of the convicts one by one which obviously allowed him ample amount of time to plan his next move. Let’s say that the mercy petition of the first convict is rejected, now he gets 14 days’ time before the execution of the death penalty could be carried out. Now very smartly he takes his next move by parallelly doing two things, Firstly, filling the Mercy plea for the 2^nd convict and Secondly Taking stay order from the lower court on the execution of the 1^st convict in accordance to the Delhi prison rule which says that nobody can be executed in isolation. As per rule no 836-a convict cannot be executed when legal proceedings of a Co-convict in the same case are pending. As per rule no 858, a death row convict must be given a notice of minimum 14 days after the rejection of the mercy plea. Therefore Mukesh Singh, whose all legal remedies had been exhausted, filed an application stating that he cannot be hanged in isolation when the legal remedies of the either convicts are pending. Also, side by side AP Singh filed a Curative Petition using Article 137 of the Indian Constitution. The curative petition can only be filed in the Supreme Court, who has the power to accept or reject the same. The Curative Petition is only to ask the court to review its original judgement.  He also alleged that Tihar Jail filed a fabricated report in the court on an application seeking high-level medical treatment for the convict’s claimed head injury, arm fracture, insanity, mental illness and Schizophrenia. The application said that at the time of a legal meeting with counsel and convict, and family meeting with the convict, it was a very serious matter that the convict Vinay Sharma could not identify his counsel and mother in jail. He also targeted the media by stating that media was building ‘undue pressure’.Later the Patiala court dismissed the plea. The court while dismissing his plea observed, “General anxiety and depression in case of a death row convict is obvious. In the case at hand, evidently, adequate medical treatment and psychological help have been provided to the condemned convict”The father of one of the four convicts had filed a police complaint alleging his son, Pawan Gupta, was attacked during his confinement in the Mandoli Jail last year. He claimed that when one of the convicts, Ram Singh, allegedly committed suicide in 2013 in jail number 3 of Tihar, he had requested the authorities to shift his son to another prison as he feared for his life. Being a father, it is quite natural to be concerned about your child, so I think there is no better person then you yourself who could feel the pain of the victim’s parents. The council of the convicts’ also alleged  that the Tihar jail authorities were not handing over certain documents and this was causing delay in filing their mercy and curative petitions.

A P Singh had moved an application alleging that the jail authorities are yet to give the documents which are required to file the mercy petition for Vinay Kumar Sharma and curative petitions for Akshay Kumar Singh and Pawan. The Public Prosecutor informed the court that Tihar Jail authorities have already supplied the relevant documents. He further informed that these are mere delaying tactics adopted by the convicts.

Pawan Gupta’s mercy plea which was the last of the convicts also got rejected, which basically means that they could not be executed until March 18. My question to you all is how much sure you all are that the convicts would be executed on March 19^th? Or let’s say till March 30^th? As till then all the legal remedies would have been exhausted- so are we confident enough to say that they will be executed till the end of this month? Unfortunately, I am not, as the council of the convicts has played well, but finally the ball is in the hands of the Supreme Court, it would be its decision, I mean to say the situation is very Dicey here.

There are several questions looming over in the society. What would be AP Singh’s next move? How far would he go? How long can he stretch this? After the rejection of all four mercy pleas the council of the convicts will have more or less 3 options. No 1- sending of the mercy plea to the president again if you have some fresh evidence. This would roughly provide him 13 to 14 days more. No 2- Filing of Curative petition again in the Supreme Court based on fresh evidences. You must be knowing that one of the convicts had committed suicide in the jail itself. The defense of the convicts may say that it was a murder by the jail authority, and I would not be surprised if they would file a case against the Jail Authority. No 3- If the defense of the convicts somehow proves that his clients are mentally ill, they could be saved as MENTALLY ILL PEOPLE CANNOT BE EXECUTED AS FAR AS THE INDIAN LAWS GOES. I fear that AP Singh would be playing with these three points in order to delay the execution as far as possible. –“Good use of your judicial knowledge Sir, Well Done!!!” It is true that it is against the ethics and human values, but as far as the Indian Judicial System goes- the definition of Ethics is quite different. Here even every criminal has a right to have a lawyer.

Advocate Vrinda Grover who was appointed as amicus curiae(friend of the court) to represent convict Mukesh told to The Court that even if a plea of a single convict is pending, execution of all the convicts must be postponed. These convicts can’t be executed separately. “There can’t be severance of the sentence”- she submitted.

Let’s try to think what could be the last possible argument that the defense of the convicts could use in case all the legal remedies are exhausted. Seeing the current scenario, I don’t think that the defense of the convicts would give up so easily. The last argument he could use is that of mental torture. He may say that due to this case there has been enough mental torture on the part of his clients- so the court should commute it from Death penalty to Life Imprisonment. It should be noted that the Supreme court in its previous statements had stated that- if it takes time to decide the judgement of death penalty of a convict then based on mental harassment faced by the convict, death sentence can be commuted to Life Imprisonment. Now this might trouble the court as if the council of the convicts puts forth this argument then the court must give a very strong reason to go against its own statement and to declare this argument of the defense null and void.

One can say that Article 21 is the root cause of this current tense scenario, as one could clearly sense the misuse of it. Article 21 grants protection of life and personal liberty. It declares that no person shall be deprived of his life and personal liberty, according to the procedures established by law. The procedure under article 21 should be available not only against arbitrary executive action but also against legislative action. It must be noted that Right to life does not include Right to Die or Right to get killed.It is no doubt that AP Singh’s constitutional obligation to make sure that convicts are able to avail all the legal remedies available to them. He is at full liberty to decide whom to fight for.

But what he is not expected to do is to use loopholes in the law to defeat the purpose of law. The guilt of the convicts has been proven beyond reasonable doubt; the counsel knows what his clients have done. Despite all this, he is deliberately stretching the process by taking advantage of the procedural inadequacies. In the garb of protecting the rights of his clients, he is manipulating both law and fact, blaming victim for getting out of her home at odd hours and going against the ‘societal norms’, questioning the intentions of the judge, bringing back the juvenility issue once the same has been decided by the court. He cannot, as a responsible citizen and a member of legal fraternity cannot play hide and seek with court despite several communications sent to him on the behalf of court. Lawyers like AK Singh shake societal conscience, they create wrong precedents for the criminals and empower them to commit crime. There is no regret in the minds of criminals. It only proves the maxim- ‘Justice delayed is justice denied.’

India needs to follow victim centric approach as far as its judicial system is concerned. While taking care of the rights of the convicts it is more important and need of the hour to lay down guidelines in the interest of the victims, their families and in larger public interest, lest the convicts found to be guilty of such horrible, gruesome and heinous offences, would be permitted to play with the majesty of law and prolong the execution of the sentences awarded to them in accordance to the law. I would like to raise that why the Supreme court is acting so sympathetic when the law is empathetic?Also, since it is allowing the council to file the mercy petition one by one, so why it can’t allow the execution of the convicts’ on by one? So, one can clearly see the exploitation of the loopholes in the Indian Judiciary System, therefore it should be strictly looked after.

.Archit Srivastava

Student

Indian&World Politics