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Death for Nirbhaya rapists, says SC, but how soon?

The first option available with the convicts is that of a review petition that they can file with the apex court. The Supreme Court reserves the right to admit it or reject it.
India TV News Desk New Delhi May 05, 2017 20:25 IST
India TV News Desk

The Supreme Court today confirmed the death sentence awarded to the four convicts in the December 16, 2012 gang rape and murder case. As strongly worded as the SC judgment may be, it could still be a while before one of the most sensational cases in recent times reaches its logical conclusion. 

For, decks are still not all cleared for the early execution of the order and the Constitution provides for avenues that the convicts can still use to buy some time.

The first obvious indication came from defence lawyer AP Singh soon after the order. Disappointed with the apex court’s decision, said that he will file a review petition after reading the order. 

Scenario 1 

The first option available with the convicts is that of a review petition that they can file with the apex court. The Supreme Court reserves the right to admit it or reject it. 

Considering that the SC decides to admit the petition, the likely outcome should be no surprise – strictly going by the observations of the three-judge bench that upheld the death penalty awarded by the Delhi HC. “If ever a case called for hanging, this was it,” the court observed in its verdict. 

Scenario 2 

If the apex court refuses to entertain the review petition, the defence is left with one final chance to seek commutation of the capital punishment.

The defence will file a mercy petition before the President of India. As per the existing procedure, the Ministry of Home Affairs will prepare a file with its recommendations and send it  to the President. The ball will be then be in the court of the country’s First Citizen.

The President, after taking note of the case, will make his decision. The file will subsequently be sent back to the MHA with the President’s remarks. 

If the President refuses to commute or pardon the convicts, the MHA will begin with the process to hang them.

Scenario 3 

In case the President decides to pardon or commute the sentence awarded to the four convicts -- unlikely considering the incumbent President’s past record. In the last four and half years, President Mukerjee has cleared as many as 32 mercy petitions. This is the highest number of mercy petitions cleared by any President of India in recent times.

Scenario 4 

The President, after scrutinising the file, may also forward it to the MHA for advice. The ministry will then examine the petition in consultation with the government. The MHA usually consults the state government concerned before submitting the mercy petition back to the President with its advice. The view of the MHA is considered the view of the Cabinet.

Mukherjee cleared 32 mercy petitions in last 4 years 

Of the 32 mercy petitions cleared, Mukherjee rejected 28. The rejected lot includes the mercy pleas of Ajmal Kasab (Mumbai attacks) and Afzal Guru (Parliament attack) and Yakub Memon (1993 Mumbai blasts).

The Article 72 of the Constitution empowers the President to grant pardon or commute the sentence of a convict. 

On the issue of delay in deciding mercy pleas, the Supreme Court in a landmark judgment last year held that the death sentence of a condemned prisoner can be commuted to life imprisonment on the ground of delay on the part of the government in deciding the mercy plea.

In case of Afzal Guru, who was awarded death sentence for his role in the 2001 Parliament attack case, the mercy petition was filed with then president APJ Abdul Kalam in October 2006. The petition remained under consideration almost for eight years. It was Mukherjee, who took the final call and decided not to pardon him.

In Ajmal Kasab’s case, the trial had concluded in March 2010 and in May the verdict was pronounced – he was found guilty of murder, conspiracy, and of waging war against India. He was sentenced to death. Kasab then approached the Bombay High Court which in February 2011 upheld the sentence. In July same year, Kasab moved to Supreme Court, challenging his conviction and sentence. The top court also found him guilty and in August next year, he was sentenced to death. He then moved a mercy petition before Present of India. Mukherjee, who had took over as the President of India in July same year, however, declined to grant him relief. The 25-year-old Pakistan-born citizen was hanged on November 21 same year.