Remedies available after Death Penalty- With Reference to the Nirbhaya Case.

- Shobhit Shukla1
On 31st January the trial court again stayed the execution of the convicts accused in the
infamous Nirbhaya Gangrape Case after the counsel for the convicts pleaded before the court
to adjourn the matter sine die as the legal remedies of the convicts were yet not exhausted.

The horrifying 2012 Delhi Gang Rape Case occurred in a South Delhi neighbourhood where
a 23-year-old female physiotherapy intern was brutally beaten, tortured and gangraped by a
group of 6 people in a moving private bus. Thirteen days later the victim died in the hospital
inflicting a series of widespread shockwaves and rage both nationally and internationally.
The accused were charged with sexual assault and murder and after the subsequent suicide of
one of the convicts, the adult convicts were given death sentences in September 2013 while
the juvenile was sentenced to a maximum sentence of 3 years. Supreme Court after rejecting
all their appeals sentenced them to be hanged on 22nd January 2020 but even after eight long
years, the convicts delayed their hangings again by filing separate mercy pleas. Thus, the
authorities charged that the four adult convicts were "intentionally delaying" and in this case,
by filing their pleas in stages, "frustrating" the legal process. Inevitably the question here to
be asked is - are these remedies causing obstruction to justice?

To better understand this dilemma, we need to start with Independent India’s first capitally
punished duo, Nathuram Godse and Narayan Apte. Capital punishment was a part of the
Indian Penal Code (IPC) 1860 before independence and continued to be a part of it after the
country’s independence. In Rajendra Singh vs State of UP2 and in Bachan Singh vs State of
Punjab3 the Supreme Court affirmed that death penalty can only be given in “rarest of the
rare” cases. The determination of this concept of “rarest of the rare” is obviously difficult.
The Court does not follow any uniform guideline to reach a conclusion in determining this
death sentence, and the subjectivity and the thought process of the judges also plays a vital
role in this determination. Only in the rarest of the rare cases should a death penalty be
imposed. The Supreme Court in Machhi Singh v State of Punjab4 laid down a few principles
which were to be kept in mind while deciding the question of sentence:

1
The author is a second year law student at The Maharashtra National Law University, Mumbai.
2
Rajendra Singh vs State of UP. 1979 SCR (3) 78
3
Bachan Singh vs State of Punjab. 2 SCC 684
4
Machhi Singh v State of Punjab. 1980 2 SCC 684
  Is there something different about the crime committed and also where does it take
place on the scale of inhumanity and is it so inhuman as to be worthy of a death
sentence?
 Are there circumstances of the crime such that there is no alternative but to impose
death sentence even after according maximum weightage to the mitigating
circumstances which speak in favour of the offenders?

A convict is thus sentenced to death only in grievous cases where the offences against the
accused are proved beyond reasonable doubt. Protection of life and personal liberty to
everyone is provided under Article 21 of the Constitution of India. Thus, the deprivation of
anyone’s life is unconstitutional under Article 21. It is also said that – “No person shall be
deprived of his/her life or personal liberty except according to procedure established by
law”,  it means, if there is a procedure by which a person can be deprived of his/her life, it is
prescribed by the state.

Article 72 of our Constitution gives the President the power to grant pardon, parole or
discharge of punishment or to reduce the sentence of any prisoner he may deem fit for
pardon. The Governor of a state does not have the same power to grant clemency, though
Article 161 of the constitution provides the governor with powers for delaying the execution
of any convict he may think deserves the same. Thus, a convict after being awarded a death
sentence can appeal for a mercy petition under these provisions provided in our constitution.
The convict can file a mercy petition through prison officials, lawyers or family members at
the office of the President or Ministry of Home Affairs. Section 366(1) of the Code of
Criminal Procedure (1973) orders the High Court to confirm the cases where death penalty is
awarded in cases by the district courts. After the High Court confirms the death penalty the
convict can file review petition at the Supreme Court of India under Article 137 of the
Constitution. After the review petition is refused and the Supreme Court confirms the death
penalty, the convicts can file a curative petition for reconsideration of the judgement. In an
important judgement, The Supreme Court of India in Shatrughan Chauhan & Ors v UOI &
Ors5 (2014) addressed the issue of whether delay in decision of mercy plea was in any way
obstruction or delay in delivering justice, Justice P. Sathasivan said:

The freedom to seek mercy pursuant to Article 72/161 of the Constitution is a constitutional
right and not at the executive's discretion or whim. Every Constitutional duty must be

5
Shatrughan Chauhan & Ors v UOI & Ors. 2015 SCC OnLine Gau 458
fulfilled with due care and diligence; otherwise judicial interferes with the command of the
Constitution for upholding its values when the judiciary interferes in such matters, this does
not in fact conflict with the authority exercised pursuant to Article 72/161, but rather upholds
the de facto immunity provided by the Constitution to any person convicted, including the
death penalty.

Now coming back to our question of obstruction of justice we should remember that
retribution has no value of constitutional nature in India. In India everyone, even an accused
has a de facto protection of life under the law. To prevent abuse of power and gross injustice,
the Supreme Court reconsiders it’s judgements and provides for a number of petitions to be
filed to prevent miscarriage of justice. This does not mean that there cannot be some changes
to avoid the agony of a number of people much like Nirbhaya’s mother. There needs to be
some immediate administrative and bureaucratic changes in the way we handle cases of death
penalty. Some changes proposed are speedy and special trials of cases concerning capital
punishment, a special bench at the apex court for cases of this stature, a time limit for the
pardoning petition filed to the President, allowing the governor to decide the capital
punishment of a person state-wise and Implement the Law Commission’s recommendation of
a special five-judge bench for cases concerning capital punishment. These and many more
suggestions will effectively help remove the administrative lack of efficiency and provide
speedy and effective justice to both the victims of these crimes and their grieving families
who live in agony for a very prolonged amount of time due this bureaucratic inefficiency.
These suggestions will also help prevent lawyers like that of the Nirbhaya accused to take an
unfair advantage of legal loopholes and prolong justice for as long as they and their clients
want. Thus, the way forward in this intricate and important case of capital punishment is a
quicker and swifter way to deliver justice and execute the accused. But this should not
happen that in this process of delivering faster and quicker justice we do not deliver justice at
all. Thus, in the process of improvement we should not forget that justice is the utmost
priority and the rights of these individuals too need to be protected.