Can a Curative Petition Keep the Nirbhaya Convicts From the Noose?

Four convicts in the Nirbhaya case will be hanged on January 22, the Patiala house court has said.

Note: This article was first published on January 8, 2020 and republished on January 9, 2020, after one of the convicts in the Nirbhaya case filed a curative petition in the Supreme Court against his death sentence.

New Delhi: In its hearing on January 7, 2020, the Patiala house courts issued death warrants for the hanging of four convicts – Mukesh Singh, Pawan Gupta, Vinay Sharma and Akshay Singh – in the 2012 Nirbhaya rape-murder case. They will be hanged on January 22, at 7 am.

On September 10, 2013, all four were found guilty of rape, murder, unnatural offences and destruction of evidence. On March 13, 2014, the Delhi high court confirmed their death sentence. On May 5, 2017, the Supreme Court rejected their appeal and upheld the death sentence.

Nirbhaya’s mother Asha flashes the victory sign on January 7. Photo: PTI

Even, the review petitions filed by the convicts have been dismissed by the Supreme Court.

One of the four convicts, Vinay Sharma, has filed a mercy petition before the President of India.

A brief explainer of the legal remedies that are now available to the convicts.

What is a review petition?

Since the Supreme Court is the apex court of the Indian judiciary, its judgment is final. However, under Article 137 of the Constitution of India, the Supreme Court is given the power to review its own judgment, if there are errors apparent on the record.

What is the provision relating to a curative petition?

A second review of the judgment of the Supreme Court is granted through a curative petition.

In the 2002 case of Rupa Ashok Hurra v. Ashok Hurra, a five-judge constitutional bench of the Supreme Court unanimously held that in order to rectify gross miscarriage of justice in its final judgment, the court will “allow” the curative petition filed by the victim.

Are there any specific requirements for the Court to entertain a curative petition?

A curative petition in itself doesn’t automatically grant a right to a second review, certain requirements must be fulfilled before the court “allows” it. These are:

  1. Court reaffirms that litigants are barred from challenging the final decision.
  2. Petitioner establishes that there was a genuine violation of principles of natural justice or an allegation of bias against the judge or judges who heard the case is proven.
  3. Petition is accompanied with a certification by a senior lawyer.

What is the provision relating to a mercy petition before the president?

Under Article 72 of the Indian Constitution, the president has the power to grant pardons, reprieves, respites or remissions 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 martial;
  2. under a law relating to a matter to which the executive power of the Union extends;
  3. a death sentence.

A pardon completely absolves the offender from all sentences or punishments or disqualifications and places him in the same position as if he had never committed the offence.

Commutation substitutes one form of punishment with another of a lighter character.

Remission reduces the amount of sentence without changing its character.

Respite awards a lesser punishment on special grounds.

Reprieve temporarily suspends the death sentence.

President Ram Nath Kovind. Credit: Reuters/A. Dave

What is the procedure to file a mercy petition?

A convict who is given a death sentence and whose appeal to the Supreme Court to review its judgment has been dismissed has the option to file a mercy petition to the president within seven days from the date on which the superintendent of jail issues a notice to do so.

Also Read: Convicts Under POCSO Act Should be Deprived of Mercy Petition: President Kovind

The president seeks the cabinet’s advice while deciding the petition. It is subjected to judicial review, that is, a convict can challenge the dismissal of a mercy petition by the president either in the high court or in the Supreme Court. If the Nirbhaya convicts challenge it first in the high court, then they will have an appellate remedy in the Supreme Court.

Given the schedule fixed for hanging and the public opinion, the courts are likely to hear such challenges on priority.