By Kartik Agarwal
India went into a state of despair on December 16th, 2012 when a 23-year-old girl was raped by six men in a moving bus in Delhi. Five of them were sentenced to death in 2013 by the Fast track court and one was sent to the juvenile justice board. The death penalty was later confirmed by the Supreme Court in 2017 and finally, they were executed after a long wait on March 20th, 2020. It took around seven years for the legal system to execute the convicts on gallows and during this period, the convicts have adopted all possible tactics to delay their execution. The Delhi Prison rules, 2018 [hereinafter ‘the rules’] require all the convicts of an offence to be executed simultaneously and this has served as a joyride for the convicts. Before the execution of the convicts, three deaths warrants were issued against the convicts, but every time they were postponed owing to the delay tactics adopted by the convicts. A petition has also been filed by the government for the individual hanging of the convicts but it was rejected by the Delhi High Court with the reason that the convicts enjoy their right to life till their last breath. The existing legal scenario may protect the right of the convicts; however, it undermines the rights of the victim and society at large to seek justice and live their life with dignity. This also raises a very pertinent question that are the rights of the victims and society subservient to the rights of convicts.
A Brief Overview of the Case
Six people committed rape of a girl in Delhi on December 16th, 2012 and they were found guilty in 2013. Five of them were awarded death penalty by the Fast Track Court and one was sent to the Juvenile Justice board, as he was a minor at the time of the incident. The sentence was later confirmed by the Delhi High Court and Supreme Court in 2014 and 2017, respectively. Amongst five, one committed suicide in Tihar jail during the pendency of the case. The first death warrant was issued on January 7, 2020, against the four convicts upon dismissal of their review petitions and subsequently, two more death warrants were issued against the convicts. However, all three death warrants were deferred as the convicts have filed their curative and mercy petition at a belated stage separately and intermittently. Finally, they were executed on March 20, 2020, upon dismissal of their plea by the Supreme Court to challenge the rejection of the second mercy petition by the President.
The Delhi Prison Rules
The accused of an offence enjoys multiple legal remedies in the Indian legal system, which includes, filing review and curative petition against the decision of the Apex court, filing mercy plea before the President for commutation of a death sentence, challenging the decision of the President before the Supreme Court, etc. Rule 836 of the Delhi Prison rules, 2018 provides for postponement of the execution of death sentence of all the co-convicts, if a mercy plea has been filed by any of the convicts. Similarly, rule 854 stays the execution of the sentence of the co-convicts until all the petitions or appeals filed before the Supreme Court are dismissed. The rules require simultaneous execution of the co-convicts, however, it does not impose any kind of time restriction over the convicts for availing their legal remedies. The standalone provision which imposes a restriction is rule 837 which sets a time restriction of 7 days for filing a mercy petition before the President upon receiving the information of dismissal of appeals by the Supreme Court. The rules may safeguard the rights of the convicts, but they put rights of the victims in peril by causing an inordinate delay. Thereby, a conflict arises between the rights of the convicts and victim which has been discussed in the next part of the paper.
Conflict Between the Rights of Convicts and Victims of a Crime
The right to life is a fundamental right under the Indian Constitution and it is enjoyed by the prisoners till their last breath. Further, the prisoners enjoy the right to have a fair procedure at all stages, trial, sentence, and incarceration. While issuing guidelines for the protection of the interests of death row convicts in Shatrughan Chauhan v. Union of India case, the Hon’ble Supreme Court has mandated a minimum period of 14 days between the date of rejection of mercy plea and the date of execution so that the convict and his family members can get mentally prepared for the execution.
The Right to life is not limited to the convicts and it is also enjoyed by the victims of a crime. The UN resolution 40/34 entitles the victims to get justice and prompt redressal for the harm suffered by them. The right of the convict to have a fair procedure and to enjoy their right to live until death causes a delay in the execution of the convicts. Besides, the requirement of simultaneous execution of the convicts results in elongating the wait for the victim to get justice and thus, it leads to infringement of the rights of the victim.
The Way Ahead
As mentioned above, there exists a clash between the rights of the convicts on one hand and victims and their family on the other. The Supreme Court has held in Mr. X v. Hospital Z case that whenever there is a conflict between two fundamental rights, the right which fosters or advances the public interest or public morality shall be protected. Further, the rights of the accused cannot be kept at a higher pedestal than the rights of the victim and society of large. Thus, there is a need to fill in this lacuna in the justice system, which presently provides for the simultaneous execution of the convicts without any deadlines for exhausting their legal remedies. The government has recently filed a petition before the Supreme Court to issue certain guidelines, which includes, prescribing deadlines for filing curative and mercy petition, execution of convicts within seven days of issuance of death warrant irrespective of the stage of the petition of their co-convicts. Setting up deadlines for filing a curative and mercy petition is a welcome step, however, individual execution of the co-convicts may not be a solution to this problem. The author says this because in Harbans Singh case, three persons were sentenced to death for an offence but the ultimate fate they met was different from one another. The death sentence of two of the convicts was commuted to life imprisonment whereas one was executed as he had not filed any petition before the Supreme Court and the jail Superintendent had not informed him regarding the commutation of death sentence of the co-convicts. Had they been executed simultaneously, all three of them would have received the same punishment and death sentence of all of them would have been commuted. Therefore, individual execution of the convicts may lead to different ends or different punishment to the convicts of the same offence and thereby, it may cause grave injustice to them.
Conclusion
Brutal and barbaric acts like rape leave a great impact over the victim, their family and the society at large. Such incidents not only instil a sense of fear in the mind of women and society at large but also fades away the faith of the people in the legal system. The accused or convict, on one hand, enjoy the right to have fair trial and procedure and on the other, the victims and society at large enjoy the right to seek justice and correction of the deviant behaviour of the convicts. The rights of the convicts have to be respected as once their life is lost, it cannot be restored. However, this is not expected to come at the cost of rights of the victim. Suppose, if there will be around 20 or 30 convicts in a case, then executing them simultaneously without any deadlines will be a very difficult task. In such cases, the rights of the convicts may be safeguarded but the rights of the victim will be grossly violated. Thus, imposing a reasonable time restriction over the right of convict to avail their legal remedies is the most viable option before the State to strike a balance between the rights of both the parties. Justice delayed is justice denied and therefore, the state cannot afford to subdue the rights of the victims to ensure the rights of the convicts.
[The author is a third-year student at National Law University, Jodhpur.]
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