Explainer: What are the reasons for delay in the execution of a Death sentence?﻿
Sai Krishna Muthyanolla
March 25, 2020
The four convicts in the Nirbhaya case were finally executed a few days ago. The execution took place 6 years after the fast track court awarded the death sentence. But what are the reasons for such a delay in the execution of death sentence? Here is a detailed explainer.
After more than seven years since the barbaric gang rape of a23-year-old paramedic student, the four convicts were executed in the earlyhours of 20 March 2020 at Tihar Jail. They had left no stone unturned to savethemselves from execution.  Though theywere awarded death sentence by a fast track court in September 2013, it tookmore than 6 years for the death sentence to be executed.  But what are the reasons for such a longdelay in the execution of death sentence? Here is a detailed explainer. `
Capital punishment has always been a controversial issue in India andother countries as well. Generally, capital punishment is awarded in the rarestof rare cases related to rape, murder, terrorism, and atrocities towardsScheduled Castes and Scheduled Tribes in India. According to National Law University’s annual report published in 2016, there are 59sections in 18 central legislations which cite death penalty as a possiblepunishment. 12 of these sections are covered under the Indian Penal Code. Inthe Law Commission of India’s report on Death Penalty in 2015, it was stated thatthere were 12 crimes under IPC and 22 other laws which prescribed deathpenalty. Later, in 2019, the NDA government amended the POCSO Act in order to grant death penalty to those who indulge in aggravatedsexual assault against children.
High Court’s confirmation is mandatory for execution
of death sentence
Usually, the trials of these rarest of rare cases take place in theSessions Court or Trial Court or a designate fast track court or a specialcourt where, based on the severity of the offence, the court can pronouncedeath penalty to the convict. It is mandatory under Section 366 (1) of Code of Criminal Procedure (CrPC) that the High Court confirms the sentencebefore issuing a death warrant. This is not applicable to those centrallegislations such as the Air Force Act 1950, Army Act 1950, Assam Rifles Act2006, ITBF Act, 1992, etc. which are excluded from the CrPC.
The Constitution gives convicts the option to approach
SC challenging HC’s decisions
The convict who is awarded the death sentence has the option to approachthe Supreme Court challenging the High Court’s decision as per Articles 132,134 and 136 of Indian Constitution. Following the Supreme Court’s decision, the convictcan file review petition under Article 137. If the review petition is dismissedby the Court, then they can file a curative petition to reconsider thedecision.
Mercy Petition can be filed with the President or
State Governor for commutation
Once capital punishment has been finalized by either of the courts, theconvict can file a request for pardon or mercy petition with the President ofIndia (Article 72) or the Governor of the state (Article 161) stating reasonssuch as age, health, and law. The President or Governor disposes of thepetition based on the recommendations of state government and sanction of theHome Ministry. Both the President and Governor can grant pardon, reprieve,respite or remission of punishment or suspend, remit or commute the convict.However, both of them must reject the mercy petition for the execution to takeplace. Further, the convict can file a petition with the Supreme Courtquestioning the President’s decision in the case of mercy petition. Once thispetition is disposed, death sentence is executed.
Convicts can file up to four petitions
A convict can, therefore, file up to four petitions. This provision hasbeen granted to convicts in order to ensure that the decision made is nothasty. The procedure gives enough checks and balances in the course of trial sothat no innocent person should be convicted.
Capital punishment is to be awarded only in the rarest
of rare cases
In Bachan Singh Vs State of Punjab 1982, the Supreme Court stated that capitalpunishment was to be given in only ‘rarest of rare’ cases. Supreme Court upheldthe constitutionality of death penalty in this case. The need for this doctrinewas to reduce the ambiguity in the kind of cases in which death penalty was tobe awarded. In this case, it was further stated that both aggravatingcircumstances (why should the punishment be severe) and mitigatingcircumstances (why should punishment be lessened) were to be considered by thecourt before arriving at the final decision.
Execution in the Nirbhaya case took place 6 years
after the judgment
On 16 December 2012, a 23-year-old girl who was returning from a moviewith her friend was brutally gang-raped in a bus in the national capital. Herfriend was also attacked. The incident resulted in nation-wide uproar on women safety inIndia. On 29 December 2012, Nirbhaya succumbed to the injuries in Singaporewhile undergoing treatment.
A total of six men were accused of the crime. One was a juvenile at thetime of incident and was sent to juvenile correction home for three years. Anotheraccused Ram Singh allegedly committed suicide in Tihar Jail in 2013. Theremaining four convicts, Mukesh Singh, Pawan Gupta, Vinay Sharma, and AkshayKumar Singh were hanged to death on 20 March 2020. What made this case morecomplicated is that all the convicts were to be executed together. This delayedthe process further. As long as any one convict’s petition was under scrutiny,others were also safeguarded by default. Each convict has the option to filepetition four times and there were four convicts in this case.
The Timeline of the Nirbhaya case
Date
Event
13 September 2013
Fast Track Court awarded death penalty to all four convicts
13 March 2014
Delhi High Court upheld the death penalty
05 May 2017
SC upheld the death penalty
08 November 2017
Mukesh files review petition in SC
15 December 2017
Vinay and Pawan moved to SC for reviewing its verdict
09 July 2018
SC dismissed all three review petitions
10 December 2019
Akshay filed review petition
18 December 2019
Akshay’s review plea dismissed
07 January 2020
Death warrant issued for 22 January 2020
08 January 2020
Vinay filed curative petition
09 January 2020
Mukesh filed curative petition
14 January 2020
Both curative petitions were dismissed and Mukesh files mercy petition
17 January 2020
Death warrant issued for 01 February 2020
27 January 2020
Writ petition against mercy petition filed by Mukesh
29 January 2020
Writ petition rejected, Akshay files curative petition and Vinay files mercy petition
30 January 2020
Curative petition dismissed
31 January 2020
Akshay filed mercy petition
01 February 2020
Mercy petition rejected
05 February 2020
Akshay’s petition dismissed
11 February 2020
Vinay proceeded with writ against mercy petition
14 February 2020
Vinay’s petition dismissed
17 February 2020
Death warrant issued for 3 March 2020
28 February 2020
Pawan filed curative petition
02 March 2020
Pawan’s curative petition dismissed, filed mercy petition
04 March 2020
Mercy petition rejected
05 March 2020
Death warrant issued for 20 March 2020
20 March 2020
EXECUTED
Government amended ‘Criminal Law’ making definition of
rape broader and increasing punishment
After the gruesome 2012 incident, following public outcry, thegovernment amended Criminal Law (Amendment) Act, also referred to as Nirbhaya Act, in 2013. Throughthe amendment, definition of rape was made broader and punishment more stringentas per J S Verma Committee’s recommendation in 2013. The amendment provided fordeath penalty in rape cases that result in death of victim or puts her in avegetative state. Furthermore, punishment for gang-rape was doubled from 10years to 20 years and up to life imprisonment. The law also included other actssuch as voyeurism, stalking, passing sexual remarks, unwelcome physicalcontact, gestures, and showing pornography against will as crimes.
Nirbhaya fund was announced in 2013 Union Budget
Nirbhaya fund was launched by the Centre to bolster women safetyacross the country. This fund was to be used by states for improvinginfrastructure such as installation of CCTV and streetlights and other projects aimed at womensafety. Factly’s article on the status of utilization of the Nirbhaya fund canbe read here.
Juvenile delinquency law amended in 2015
Juvenile delinquency law in India was also amended in 2015 to allow trial ofchildren between 16-18 years as adults for heinous crimes.  Juvenile Justice (Care and Protection) Act was modified with the intention to act as deterrentfor children committing heinous crimes. Here, heinous crimes are those whichhave a minimum punishment of 7 years’ imprisonment under any law. For example,rape and murder are heinous offences in India.
Only four people were executed between 2000 and 2018
in India while close to 2500 were awarded death sentence
Capital punishment has once again become a topic of debate following theexecution of the four convicts in this case. Since the beginning of thismillennium, a total of 2493 people were awarded capital punishment as per the National
Crime Records Bureau’s data as on 31 December 2018. However, only four were executed at the time ofrelease of data. Including the latest executions, a total of eight convictshave been executed since 2000. The Law Commission of India had recommended that death penalty be abolished in all cases exceptterrorism and waging war.