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SC upholds death sentence for 2012 Delhi gangrape convicts: How they can appeal against it

Written by PaperDabba
By: Express Web Desk | New Delhi | Published: July 9, 2018 6:02:07 pm

Parents of the December 2012 gangrape victim after the Supreme Court’s verdict upholding the death sentence of the three convicts in the case. (PTI photo)

The Supreme Court Monday rejected review petitions against the death sentence awarded to three convicts in the December 16, 2012 Delhi gangrape case. Dismissing their pleas, the apex court said no grounds have been made out by them for review of the verdict.

A three-member bench headed by Chief Justice Dipak Misra rejected the review pleas filed by Mukesh (29), Pawan Gupta (22) and Vinay Sharma (23), and said the death row convicts failed to point out “error apparent on the face of record” in the judgment. The fourth death row convict, Akshay Kumar Singh (31), did not file a review petition against the apex court’s May 5, 2017 judgment

The bench also stated that these three convicts were heard elaborately during the stage of their appeal against the Delhi High Court’s judgment and no case has been made out by them for review of the apex court’s verdict upholding the death penalty.

So now that the Supreme Court has awarded the death sentence, what are the avenues available to the convicts and here’s happens next:

What are the avenues available to a death-row convict?

After a trial court awards the death penalty, the sentence requires to be confirmed by a High Court. The sentence shall not be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired. If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition. If the review petition is nixed then a curative petition can be filed for reconsideration of the judgment.

A Constitution Bench ruled in 2014 that a review petition by a death-row convict will be heard by a three-judge bench in open court. Such cases were earlier being heard by two-judge benches in the judges’ chamber. A curative petition is still heard in judges’ chambers. Opening another avenue, the Supreme Court, by yet another path-breaking verdict in 2014, ruled that unexplained delay in execution was a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.

Does the executive have a role in clemency?

Yes. If the Supreme Court turns down the appeal against capital punishment, a condemned prison can submit a mercy petition to the President of India and the Governor of the State. Under Articles 72 and 161 of the Constitution, the President and Governors have 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”.

This power was without any conditions until the last year’s verdict by the Supreme Court, which held that judicial clemency could be granted on the ground of inordinate delay even after a mercy petition is rejected.

How is the execution of death sentence carried out in India?

Execution is carried out by two modes, namely hanging by the neck till death, and being executed by firing squad. The Code of Criminal Procedure calls for the method of execution to be hanging. It states: “When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead.” In Deena vs Union of India (1993), the Supreme Court adjudicated upon whether the execution of death penalty by hanging by rope is constitutional. It held the method prescribed under the CrPC was valid. Death by shooting is contemplated under the Army Act, Navy Act and Air Force Act. They provide for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death.

Can an order of execution be challenged in a court of law?

Yes. The procedure for carrying out the execution must also fulfill certain conditions as stipulated by the Supreme Court in Shatrughan Chauhan vs Union of India (2014), and by the Allahabad High Court in Peoples Union for Democratic Rights vs Union of India (2015). The guidelines hold that a death-row prisoner must get free legal aid for drafting a mercy petition and, if it is rejected, an intimation to the prisoner and his family is imperative.

A minimum 14 days’ notice for execution must be given to let him “prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs”, besides also allowing him “to have a last and final meeting with his family members.” An execution can be stopped owing to a convict’s physical or mental ill health, the top court has held. The death warrants are issued by the trial court.

What constitutes a “rarest of rare” case?

The principles as to what would constitute the “rarest of rare” has been laid down by the top court in the landmark judgment in Bachan Singh vs State of Punjab (1980). Bachan Singh formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely upon the court’s discretion to reach this conclusion.

However, the apex court also laid down the principle of weighing aggravating and mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded.

Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?

Which crimes entail capital punishment in India?

Grave offences such as murder, rape with injuries that may result in the death of a victim and a repeat offender, waging war against the State, and terrorism-related offences causing death are some major crimes punishable with death under the Indian Penal Code.

Similarly, there are provisions under The Arms Act, The Narcotic Drugs and Psychotropic Substances Act, The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, The Air Force Act, The Army Act and The Navy Act wherein capital punishment is prescribed as one of the punishments for serious offences.

The now-repealed Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA) also contained provisions for death sentence.

A version of this article was originally published with the headline ‘Explained: A Question of Life and Death’ on May 26, 2015

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