Can the Nirbhaya Convicts Actually be Executed on 16 December?

An expert on death penalty explains the convicts’ legal options and what happens when these are exhausted.

The Nirbhaya convicts cannot be executed on 16 December.

(Photo: The Quint)

Video Editor: Sandeep Suman

When will the men convicted in the 16 December 2012 gang-rape and murder be hanged?

What legal options do they still have to contest their death sentence?

And what happens after all legal avenues are exhausted, if their death sentences are upheld?

Rumours have been rife for days now that the four men convicted of raping and killing Jyoti Singh could be executed on 16 December, on the 7-year anniversary of their heinous crime. Reports have pointed to requests for hangmen from Uttar Pradesh, for deliveries of ropes for the hanging, as proof that the hangings will take place shortly.

But could this be true? Aren’t there review petitions and mercy petitions currently being considered by the courts and the President?

The Quint spoke to Shreya Rastogi, a capital defence lawyer who works with NLU Delhi’s Project 39A (formerly the Centre on Death Penalty), who explained the legal options still open to the convicts and why a rushed execution would be against the law.

“The accused have many legal remedies which are currently pending. Firstly, one of the accused filed their review petition yesterday. Also, all four accused are yet to file their curative petitions before the Supreme Court. Only one of the accused has filed a mercy petition which is currently pending before the President. The remaining three accused are yet to file their mercy petitions.”

The review petition filed by Akshay Kumar Singh, mentioned by Shreya, has been listed for hearing by the Supreme Court on 17 December at 2 pm. One would imagine this makes it impossible for the executions to take place on 16 December.

Vinay Sharma’s mercy petition still needs to be formally rejected by the President, even though the Law Ministry and the Delhi government have already recommended rejecting it.

So there are review petitions, curative petitions and mercy petitions still to come, before the convicts can be executed.

Rastogi also explained the importance of the mercy petitions, and the process to be followed after the issue of a death warrant.

“If a death warrant is issued, the procedure laid down by the Supreme Court also requires that enough time with a minimum of fourteen days should be given between the issuance of the warrant and the execution of the prisoner. This is to allow the prisoner to challenge their impending execution and to have a final meeting with their family members and settle their worldly affairs.”

Shreya Rastogi, Project 39A

It is understandable if some think this is dragging the process on too long. But there are reasons why there are all these checks and balances when it comes to the execution of a death sentence, in accordance with Article 21 of the Constitution – which says that a person can only be deprived of their life in accordance with a procedure established by law.

“Death penalty is a final and irreversible punishment. Therefore utmost care and highest standards have to be followed before it is carried out ... Irrespective of how heinous or barbaric a crime may be, as per our Constitution, all death-row prisoners are entitled to these protections.”

Shreya Rastogi, Project 39A