Filing of curative petition by Nirbhaya convict may not come in the way of execution order

Days after the issuance of a death warrant, Vinay Sharma, one of the convicts in the Nirbhaya rape case of 2012, has filed a curative petition in the Supreme Court, urging for the death penalty served on him to be reconsidered.

The plea comes close on the heels of a death warrant being issued by Additional Sessions Judge Satish Arora against the four convicts, who were due to be hanged to death on January 22 at 7 am.

While questioning the correctness of the judgment that affirmed the death penalty for Sharma, the petitioner argues that the same was prompted by the frenzied media attention on the Nirbhaya case.

Other grounds on which Sharma has contended that the judgment confirming his death sentence is ‘patently erroneous and bad in law’ include the following:

Death penalty jurisprudence stands ‘definitively changed’

Sharma has argued that the SC ought to take into consideration the changes in the death penalty and sentencing jurisprudence that have taken place since his conviction and sentence.

As per the petition filed by advocate Sadashiv and drawn by advocate AP Singh, subsequent judicial pronouncements have “definitively changed the law on death sentence in India, allowing several convicts similarly placed as the petitioner to have their death sentence committed to life imprisonment."

Why is the alternative of life imprisonment without parole foreclosed?

The petitioner argues that the court has not explained why it cannot impose a penalty of life imprisonment for the remainder of the petitioner's natural life instead of the death penalty.

"There has been no judicial response to explain as to why the alternative of life imprisonment without the possibility of parole until the exhaustion of natural life has been unquestionably foreclosed. This abdication of the judicial duty to give reasons for the decision and to address the arguments advanced before the court has caused a breach of the principles of natural justice and grave prejudice to the petitioner since it is a question of life or death,” the petition says.

Of systemic bias and lack of deterrence in imposing the death penalty

It has been contended that the poor socio-economic background also played into the imposition of the death sentence of Sharma. The petitioner has also cited the 2016 report on Death Penalty prepared by the National Law University, Delhi to state that, "the death sentence as a punishment is disproportionately visited upon the poor and the marginalised."

Young adults less capable of ascertaining consequence of impulse-driven actions

Sharma also alludes to neurological perspectives to argue that at the time of the crime, he could not make an objective assessment of his actions given his young age. His petition states, “There is scientific evidence to suggest that young adults are less neurologically capable of ascertaining the consequences of the impulse-driven actions …”

National Herald reached out to legal experts on whether Sharma could escape being hanged on the date set for carrying out the sentence.

Speaking to National Herald, Mahesh Thakur, advocate-on-record (AOR) in Supreme Court, said that curative petitions had a very limited scope since by definition they would need to challenge some glaring error in the original orders or a substantial question of law. “This doesn’t seem to be the case here,” he opined.

“Also, filing a review or curative petition doesn’t amount to an automatic stay on the operative judgment, so the petitioner, in this case, cannot really expect the hanging to be postponed just by filing the curative petition,” he pointed out.

“It’s a different matter that since it’s literally a matter of life and death, the jail authorities may postpone the execution till the pendency of the petition,” he added.

Asked how long the court may take to hear and dispose of the petition, he said, “Although that’s obviously the prerogative of the court, in general, if no defects are found by the court registry, the petition could possibly be taken up this week itself. Further, the court may well dispose of the same in a single sitting considering that execution of the sentence has been hanging fire for several years. More importantly, as I said, curative petitions are very rarely entertained by the courts.”

Speaking to National Herald, a senior advocate, who requested anonymity, concurred with Thakur’s opinion that filing of curative petitions by the convicts at this stage may not get them anywhere.

NH also reached out to senior advocates Sanjay Hegde and Vrinda Grover, but they both expressed inability to comment on the matter since they played the role of amici curiae in the case. Noted lawyer Karuna Nundy said she did not comment on matters relating to the death penalty.

On December 16, 2012, six men had brutally gang-raped a young woman, later named ‘Nirbhaya’, in a moving bus in Delhi. The victim succumbed to her injuries two weeks later at a hospital in Singapore. The six accused were apprehended by the police.

Of the six accused, the main accused committed suicide in Tihar jail during the course of the trial and the juvenile accused was sentenced to three years in a remand home upon conviction. The remaining four were handed a death penalty by the Additional Sessions Judge at Saket court, which was subsequently affirmed by the Delhi High Court and the Supreme Court.

The SC dismissed review petitions filed by three of the accused i.e. Mukesh, Vinay and Pawan, in July 2018. The fourth convict Akshay's review petition was dismissed by it in December last year.