Nirbhaya case: Delhi High court reserves judgement on Centre's plea challenging stay on execution of convicts

The Delhi HC had issued a notice to Tihar jail authorities and the Nirbhaya convicts and sought their response on a plea moved by the Ministry of Home Affairs challenging the stay on convicts execution.

New Delhi: In a bench headed by Justice Suresh Kumar Kait, the Delhi High Court on Sunday (February 2) reserved order on Ministry of Home Affairs (MHA) plea challenging the trial court's order which had stayed the execution of the convicts in the 2012 Delhi gang-rape case.

The Delhi HC had issued a notice to Tihar jail authorities and the Nirbhaya convicts and sought their response on a plea moved by the MHA challenging the stay on convicts execution. 

Putting forward his argument in the case Solicitor General Tushar Mehta said that law requires a 14 days notice period to be given to the convicts to take care of their affairs before they are hanged. In this case, on the 13th day, one convict will file some plea and then ask for a warrant to have stayed against all which clearly states that they are all acting in tandem. He also presented a chart before the court explaining the legal remedies availed by the four death row convicts till now.

Carrying forward the courts proceeding SG Tushar Mehta said that the convicts cannot be hanged separately only during the time when judicial proceedings are ongoing. Once Supreme Court decides the fate of all convicts in finality, there is nothing barring them from being hanged separately. He further submitted that the last legal remedy which can postpone the hanging, as per the Prison Rules, is the Special Leave Petition before the Supreme Court. 

Defending his point SG Mehta said that mercy has been described as a separate petition it is not an application or appeal which means that hanging can take place once the apex court dismisses all the SLP in a case of multiple death row convicts, therefore separate hangings of convicts can take place. He also called the mercy petition filed by convicts as a deliberate, well-calculated move designed to frustrate the process of law, adding, there cannot be any delay in the interest of justice, death sentence cannot be delayed.

Mehta called the rape and murder incident ghastly which shook the nation and said that 7 years have gone by and they are still playing with the machinery of the judicial system. The convicts are still trying the patience of the nation. He also gave example of  Telangana encounter and said, '' people celebrated after the police encounter in Telangana, which was not the celebration of police but celebration of justice, adding, only victims would who say that people will stop believing in the justice system, the credibility of the institution and its own power to execute death sentence is now at stake.

Mehta said ''If this continues, people will stop having faith in the administration of justice, seven years have gone by and they are still playing with the machinery of the judicial system. Accused/ convicts are still testing the patience of the nation.''

Concluding his argument SG Mehta said the order passed by the trial court deserves to have stayed. Every convict is enjoying defeating the judicial system in the country. Convicts are exploiting the process of law. 

Convicts lawyer AP Singh argued that the convicts belong to rural areas, Dalit families, they came to Delhi and got implicated, adding, the convicts cannot be made to bear brunt of ambiguity in the law

Senior advocate Rebecca John who was arguing for Mukesh Singh in Delhi HC said, "The high court has to confirm the sentence of death. The sentencing order of the trial court was one common order for all convicts. The convicts were sentenced by a composite order which was upheld by the HC and the SC.  She added, ''My question is, does the scheme envisage the delinking of the convicts? A common sentence and a common execution. That's all I'm seeking today."

As per the current status of the case, three out of the four convicts Mukesh Singh, Vinay Sharma, Akshay Thakur has already filed a mercy petition in the apex court which got dismissed whereas Pawan Kumar Gupta is yet to file curative and mercy plea. 

On February 1, barely 12 hours ahead of the much-anticipated execution of the four convicts in the Nirbhaya gangrape-murder case, the court directed the Tihar jail authorities to not execute the death warrants issued against the convicts. 

As per Patiala House courts earlier order the execution of the four convicts was scheduled for 6 am at Tihar Jail no. 3. The Tihar Jail authorities had also brought Pawan Jallad, a third-generation hangman from Meerut to carry out the execution. On January 31, the jail authorities also performed a dummy execution of the four men ahead of the actual hanging.

The case pertains to the gangrape and brutal murder of a 23-year-old paramedical student in a moving bus on the night of December 16, 2012, by six people, including a juvenile, in Delhi. The woman had died at a Singapore hospital a few days later while being treated for several internal injuries.