Author :- Pratima Pal

The affliction the night of 16 December 2012 created stunned the whole nation. A woman was mercilessly gang raped by six men including the bus driver, a minor and four other men in a private bus. The woman along with his friend was thrown out of the bus and was severely injured. The woman was brave, but sadly the assault which was afflicted on her was beyond any one’s imagination and as a result she died after 11^th day of the incident in a private hospital because of the incubus of those men who just saw her as an object to satisfy their lust.

This incident generated protest on national as well as internal national level, candle light marches on the street of India Gate was done by the students demanding more strict laws and punishment for severe body crimes like rape whether it is committed by a minor or a major and justice for the brave girl ‘Nirbhaya’ who gone through so much but still wanted to fight.

One of the accused namely Ram Singh was found dead on 13 March 2013 in Tihar Jail reason stated was suicide and the juvenile was convicted of 3 years of imprisonment. Other four accused-Mukesh Singh, Vinay Sharma, Pawan Gupta and Akshay Kumar Singh was sentenced death penality by the honorable Supreme Court. After 7 years of waiting the most awaited justice was done to the Nirbhaya on 20 March 2020, which was celebrated as the justice day by the whole country.

So the question arises what took so long for the courts to deliver the justice? Let’s discuss about it in detail-

Death penalty or the capital punishment is the highest degree of punishment in Indian Court of Justice which can be awarded to an individual under provisions of Indian Penal Code (IPC) and several other acts. Under the IPC eleven offences are punishable by death such as Dacoity with Murder, Abetment of Suicide by a minor or insane person etc.

In Bachan Singh v. State of Punjab (1980), it was decided by the court that death sentence is the exception while life imprisonment is the rule. Therefore, by virtue of section 354(3) of CR.PC. Death sentence can be inflicted only in special and rare cases only. To decide whether a case falls under this category or not was left the discretion of the Court. Moreover, certain guidelines were created in deciding the ‘rarest of the rare case’ depending upon the respective case brought before the Court of Justice. One of the most important points to be noted was the degree of the crime afflicted and the mitigating circumstances in a particular case. More emphasis was made on the mitigating circumstances of the crime and after the analysis of the important points if the judges feel that no other punishment can suffice the crime other than death sentence is awarded, then and only death sentence should be imposed.

Article 21 of the Indian Constitution provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Thus the Indian Constitution provides equal rights to every individual. So, do criminals do have rights? Yes, they have awarded some rights under the Indian Constitution. In Cases of death sentence the accused can file for a review petition, special leave petition, curative petition and mercy petition.

Review Petition

According to Article 141 of the Indian Constitution, the Supreme Court’s judgment is declared as law of land and is binding in all courts in India. It becomes final for future case references in deciding cases. But the judgment of the Supreme Court can be reviewed, The Constitution of India provides under Article 137, the Supreme Court the power to review any of its judgments or orders. As per 1996 rules framed by the Supreme Court, a review petition must be filed within 30 days of the date of judgment or order. In a 3-2 verdict, the Supreme Court agreed to review its 2018 verdict in the Sabrimala case.

Special Leave Petition

A special leave petition grants an individual right to be heard in appeal against any high court or tribunal verdict. Under Article 136 of the Indian Constitution, the Supreme Court has power to grant special permission or leave to an aggrieved party to appeal against any order passed by a high court or a tribunal court. This leave is granted when the case involves a question of law, whether the interpretation of law has been applied correctly or not. It can be filed against any judgment of a high court within 90 days from the Day of Judgment or within 60 days against the order of a high court refusing to grant the fitness for appeal to Supreme Court.

Curative Petition

A curative petition is the last constitutional resort available for redressal of grievances in court after a review plea is dismissed or has been exhausted. The aggrieved parties have the statutory right to appeal. Once a decision is given by the Supreme Court of India, the same may be considered final and binding. 

The court had ruled that a curative petition can be allowed if the petitioner establishes there was a violation of the principles of natural justice, and there were some facts which were brought to the notice of the court but were ignored by the court before passing an order. The concept of curative petition originated from a landmark judgment in Rupa Ashok Hurra V. Ashok Hurra and Anr. The concept was evolved by the apex court to prevent the miscarriage of justice and to prevent abuse of process. In this case, a five-judge constitution bench of the Supreme Court unanimously held that in order to rectify gross miscarriage of justice, the court will allow the curative petition filed by the victim.

Mercy Petition

Under Article 72 of the Indian Constitution, the President has the power to grant pardons, reprieves, respites or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where punishment or sentence is:

1. Given by a court marital;
2. Under a law relating to a matter which the executive power of the Union extends;
3. A death sentence.

The president can exercise his power of granting pardon on the recommendation of the Cabinet and Ministry of Home Affairs. In Shatrughan Chauhan and another v. Union of India (2014) the procedure that should be adopted in cases of prisoners on death row was decided, further modifications, clarification and directions was made on this case by the Ministry of Home Affairs.

Moreover, under Article 161 of the Indian Constitution, under which the Governor of a state shall have the power to grant pardons, reprieves, respites or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends. Governor has no right to pardon the death sentence; he can exercise his judicial powers for the punishment which is given under the law made by state, further the Governor cannot pardon in the court-martial.

The Tihar Jail administration had asked the convicts in the Nirbhaya Case, 2012 to apply for mercy petition before the President within seven days of the judgement. The Court can exercise its power to grant “Capital Punishment” only when all the rights of the Convicts have been exhausted. It is the duty of the Court to entertain the rights of every individual as the Justice cannot be served on humiliating the rights of the person accused.

Conclusion

According to Amnesty International’s 2019 report at least 2307 death sentences in 56 Countries was recorded. At least 26,604 people were known to be under sentence of death globally. The method of execution range from beheading, hanging, legal injection to shooting. More than two-third of all countries have abolished death penalty in law or in practice. Many Western European and American Countries like Brazil, Kazakhstan, and Chile have abolished death penalty. In these Countries death penalty can only be given for exceptional crimes committed under military law or under exceptional circumstances.

At the end it is the duty of the Court to maintain the dignity of every individual. Indian Courts should adopt reasonable and fast methods in delivering the justice as the motto of the Court is not only to provide justice but to provide justice in a reasonable time and in a proper manner so that the sufferers need not to wait for the years for justice. For Some people, giving the death penalty to the accused will suffice the justice to the aggrieved party. But is there any rule that after giving the highest degree of punishment in form of “Death Sentence” will stop further heinous crimes? Nothing can be said about it because the crimes like rape are still continuing even after the Nirbhaya Case judgment. Some petitions were also brought before the Supreme Court to abolish death penalty in India.

The opponents of the death sentence argued that it is possible for an innocent to be executed because of unfair and discriminatory application of death penality. As the Court cannot deliver the justice on humiliating the rights of any two parties involved. Studies across the world have shown that in most cases the person sentenced to death penalty is from an economically and socially backward section of society, indicating the inability to hire good lawyers to contest their cases. Many studies have suggested that there is no evidence to show that capital punishment has any effect on murder or rape rates. It is also argued that the sentence is a denial of human rights and sends a wrong message-that killing is acceptable under certain circumstances.

Author:- Pratima Pal is studying at Amity Law School.