The Nirbhaya Case - How legal loopholes defer justice

Policharcha.com | Updated: February 05, 2020, 1:52 IST

Blind law. Legal loopholes. Justice deferred.

The Delhi High Court on 5th February dismissed the Centre’s plea to fast track execution of convicts in the Nirbhaya Case. The court is of the view that all four convicts will be hanged together and not separately.

Justice Suresh Kait, who was hearing the case said, "Delhi Prison Rules do not say that if mercy petition of one convict is pending, the execution of the other convicts can take place."

The HC gave one week’s time to the four remaining convicts to exhaust their legal remedies as a last resort. Further, Centre and Delhi Government have moved the Supreme Court against the HC’s judgement.

Law has always been seen as a tool to provide justice and enable for justice to prevail. Is it always so? Can it actually delay or even restrict justice in some cases?

These are the question that people are asking in the Nirbhaya gang rape and murder case, in which the convicts have been on death row since January, but legal loopholes continue to delay their execution, which is thought to be the only way of providing any justice to the victim and her family.

Mukesh Kumar Singh (32), Pawan Gupta (25), Vinay Kumar Sharma (26), and Akshay Kumar (31) were scheduled to be hanged on February 1st, but trial court in Delhi postponed the execution on 31st January till further orders. The court’s rationale behind staying the execution was that all legal remedies were yet to be exhausted. It was the second time this happened. Previously the death-sentence, issued on January 7 for January 22, was stayed, and a second warrant was issued for February 1st.

Both Union and Delhi Government moved Delhi High Court to challenge the trial court’s order. Solicitor General Tushar Mehta, while presenting Centre’s case, said that the convicts are intentionally delaying the hanging. He further commented that the actions of these individuals are disgusting and have shaken the conscience of the society. Such a delay would also have an inhuman effect on society, he added.

On the other side, Vinay, Akshay, and Pawan’s defence counsel, AP Singh argued that existing Jail Rules allow convicts to exercise their legal options.

To understand how these legal options are deferring the due course of law, we need to see the legal processing status of every convict and how it also affects the other convicts.

  • According to Jail Rules, offenders convicted for the same charges can’t be hanged separately. Therefore, we can interpret that the justice will be served when all of them - individually and collectively - have exhausted their legal options.
  • At this point, Vinay, Akshay, and Pawan have filed a petition against the death warrant. Mukesh has no stalks so he cannot file a petition against his death warrant, but his lawyer filed an application demanding that all culprits involved in the crime should be hanged only when their legal treatment is completed.
  • Everyone except Pawan, who is yet to go to the Supreme Court, have used curative petition. Curative petition allows the Supreme Court to review and cure gross miscarriage of justice.
  • Mukesh and Vinay’s mercy petition has been declined by the president. Akshay has filled one, and Pawan is yet to file a mercy petition.

What about the other two convicts?

  • Ram Singh, who was one of the six perpetrators of crime in the case, committed suicide in the Tihar Jail in 2013.
  • A juvenile was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term.
  • In 2017, the Apex Court upheld the capital punishment awarded to the convicts by the Delhi High Court.

Legal loopholes have been used by the convicts as a dilatory tactic to delay their execution. Many suggest for legal reforms in India to stop the ‘injustice’, because the law which is considered to be an enabler of Justice has been used to restrict it.

Another school of thought believes that every person, including death row convicts, should be able to pursue their legal remedy and seek redressal of their grievances through procedure established by the law. After all, it is a hallmark of a civil society that operates under the rule of law.

Is it justified to provide every human with the same legal tools as any person gets, for the purpose redressing their grievances, no matter what they have been convicted for?

The decision of the Delhi High Court on the Centre’s plea challenging the stay on the execution of the four convicts will set legal precedents on this matter.  

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