Mukesh Kumar, one of the four convicts on death row in the Nirbhaya gang-rape and murder case, moved the Patiala House Court on Wednesday apprising it about the pendency of his mercy petition before the President of India, following the Delhi High Court refusal to interfere with the death warrant issued against all the four convicts.
Following this, the court on Thursday directed Tihar jail authorities to file a proper report by Friday about the status of the scheduled execution after the jail authorities said they have written to the Delhi government on the issue in view of pending remedies available to the convicts.
Mukesh filed the mercy petition on Wednesday evening after the Supreme Court rejected his curative petition. This has effectively put off the execution — originally fixed at 7 AM on January 22 as per a Delhi court order pronounced on January 7 — of the four convicts for an indefinite period of time because of the way the system works.
As per Sunil Gupta, former law officer at Tihar Jail in Delhi, there is a prescribed procedure for dealing with a mercy petition filed by a convict on death row. “After a convict files a mercy petition, the concerned jail superintendent sends it to Delhi government, along with a letter, stating the stay on execution till the time the government takes a final decision on the mercy petition,” he told National Herald.
“When a mercy petition is sent to the President of India, all documents related to the case including the entire court files, etc must be made available to him. The President is supposed to apply his mind to the matter before reaching a decision,” he said.
Further, the Delhi Jail Manual 2018, describes the process of filing of mercy petition and how execution should take place. It says that whenever the last appeal of a death convict is dismissed by the court, he would get seven days to file a mercy petition.
Interestingly, one of its provisions puts on hold the execution of all four convicts even if mercy petition of one of them remains pending with the government.
“Mercy petition of all four convicts must be dismissed for their execution,” Gupta confirmed.
Another provision in the manual makes the January 22 date practically redundant. “A minimum period of 14 days as stipulated by the Supreme Court between the receipt of the communication of the rejection of the mercy petition and the scheduled date of execution,” the Delhi Jail Manual says.
“This is to enable the prisoner sentenced to death to prepare himself and settle his affairs and meet his family members for one last time or to avail any judicial remedy,” the manual, accessed by National Herald, says.
What if Delhi HC doesn’t stay the execution?
Lawyer Vrinda Grover’s petition in the Delhi High Court, which came up for hearing on Wednesday, pleaded for the death warrant to be stayed.
Keeping the provisions of the Jail Manual in mind, the Delhi government told the court during the hearing that it will not execute the convicts on January 22.
Even if the Delhi High Court doesn't grant any stay on execution, both the Tihar Jail authorities as well as Delhi government, are bound by the Jail Manual and the execution cannot be held on the scheduled date.
For how long is the execution on hold now?
A lot depends on how soon their mercy petitions are dealt with by the President.
Of the four, two convicts are yet to file curative petitions in the Supreme Court. If their curative petition is dismissed, they will get seven days to file mercy petitions. They can file mercy petitions on different dates to buy more time.
After the dismissal of mercy petition of all convicts, they will get another fourteen days as explained earlier.
Incidentally, President Ram Nath Kovind has gone on record about rejecting mercy pleas to those convicted under the Protection of Children from Sexual Offences (POCSO) Act. Speaking at an event in Rajasthan on December 6, he said, “Rape convicts under the Protection of Children from Sexual Offences (POCSO) Act should not be allowed mercy petition.”
In this particular case, the convicts were not prosecuted under the POCSO Act, since the victim was not a minor, and it remains the President’s prerogative whether or not to accept their mercy petitions. The moot point, however, remains, that the process may take some time.
President’s decision can be challenged in court
In another twist to the tale, even if the President rejects the mercy petitions filed by the convicts, possibly in a staggered manner to buy them more time, the decision can again be challenged in the Supreme Court or Delhi High Court, Gupta pointed out.
There is a precedence for this: the Yakub Memon case, in which he was sentenced to be hanged on July 30, 2015 for his role in the 1993 Mumbai bomb blasts. At 11 am on July 29, 2015, Memon had submitted a 14-page mercy petition to President Pranab Mukherjee. At around 10.45 pm that night, the petition was rejected.
Memon’s lawyers then moved the Supreme Court late that night in an unprecedented event, following which a bench of three judges — Justice Dipak Misra, Justice Prafulla C Pant and Justice Amitava Roy— was constituted to hear the petition. The proceedings commenced at 3.30 am, just hours before his hanging scheduled for 7 am. While Memon’s prayer was only to postpone the hanging by 14 days by citing a previous case, rather than against the execution, the SC went on dismiss the same, and he was hanged as scheduled.