“Why did it take 8  years? The Nirbhaya case timeline”.

INTRODUCTION 

It was December 2012 that as a society, as a nation we had suffered, painful discussions on women’s safety, rape, and the attitude of women. The gangrape and murder of the woman called ‘Nirbhaya’ or fearless as mentioned by the sections of media, opened our hearts and minds to the horror of violence, to our prejudices, to the state of women in the 21st century in India.

The everyday newspaper publishes stories of endless cases of rape and sexual abuse against women, which clearly states that India is not safe for women even in the 21st century. This country has been ranked as the world's most dangerous country for women.

And this is evident from the Nirbhaya case to the Hyderabad gang rape and murder case to the Hathras case. 

FACTS OF THE NIRBHAYA CASE 

On the dark and cold night of December 16, 2012, a 23-year-old  woman was brutally assaulted and raped in a moving bus in south  Delhi. Jyoti Singh, a 23-year-old female physiotherapy intern was beaten, gang-raped, and tortured on December 16, 2012, in munirka, a neighborhood in South Delhi.

She was traveling with her friend, Awindra Pratap Pandey. The woman and her friend  Pandey were returning home after watching the movie "Life of Pi"  on the night of December 16, 2012. They boarded an off-duty charter bus at Munirka bus stand in which there were six other men including the bus driver. The bus started moving in an off-route direction and the men shut the doors of the vehicle. 

Suspecting something wrong, when Pandey objected,  he was shouted down and a scuffle broke out as the drunk men started molesting her. Her friend was knocked down with a rod and the men dragged her to the back of the bus and repeatedly gang-raped for over an hour.

As she fought back, one of the juvenile attackers inserted an iron rod into her private parts,  pulling and ripping her intestines apart. The bus driver drove all over Delhi while this was happening. After the attack, both of them were thrown out of the bus to die at the side of the road.

The two were found half-dead by a passer-by who informed the Delhi  Police. She was taken to the Safdarjung Hospital where doctors found she had only five per cent intestines left inside her body.  She succumbed to her injuries on December 29, 2012.

In her statement to Police, she said she wanted justice against the six attackers. The incident led to widespread demonstrations and protests across the country. It also started changes in the laws about violence against women. 

WHY DID IT TAKE SO LONG TO CARRY OUT THE DEATH SENTENCE OF  THOSE CONVICTED FOR THE RAPE AND MURDER OF NIRBHAYA? 

There were six who were convicted for the Nirbhaya gang rape and murder case. Ram Singh, was the driver of a contract bus.  Mukesh was Ram Singh’s younger brother and was a cleaner on the bus. Vinay Sharma, he worked as a gym assistant. Akshaya Thakur worked as a helper on contract buses. Pawan Gupta used to sell fruits. Out of these six two of them got away. One through suicide, and one because he was not old enough to be tried for rape and murder. 

While capital punishment or death penalty is not outlawed in  India, it’s awarded only in the “rarest of the rare” cases. While a  person incarcerated on false charges or due to a lapse in the justice system can be later released and compensated in some way, the death penalty is final.

A person executed wrongly cannot be brought back to life. This means that the regular legal procedure in death penalty cases has multiple checks and an extra layer of protection.

• First, the trial court can award death sentences only in the “rarest of the rare” cases.
• Second, the death penalty has to be confirmed by the High Court. So, the judgment then automatically goes into the High Court.
• Third,  the convict can also choose to approach the Supreme Court against the High Court’s decision. He can file a review petition.  It has to be filed within 30 days of the date of judgment or order.
• The Supreme Court can, at its discretion, accept or reject the petition. The convict can also file a separate curative petition.  It is a way to ask the court to review and revise their own decision even after a review petition is dismissed or used. Both the review and curative petitions are standard legal processes,  meant to rectify errors in judgments.
• Fourth, the convict can file a mercy petition before the President of India. Under the Indian law, the President has the power to commute or pardon a death sentence. This is not a judicial pronouncement, but a way provided by the Constitution whereby the executive can correct a judicial error considering the facts outside the legal-judicial domain. This process involves a recommendation from the relevant state government, and sanction from the home ministry,  and also takes time.
• Fifth, after the mercy petition is also rejected, the convict can approach the Supreme Court with a  petition questioning the legitimacy of the President’s decision in the mercy petition. The court can uphold or set aside the  President’s response under its power of judicial review. The disposal of this petition ends the process, and the death sentence may be executed thereafter.

Therefore, even after the Supreme Court upholds the High Court’s decision, four petitions are available to the convicts. In addition to this, in 1975, the Supreme Court directed that the convicts in the same crime must be executed together. This was done to ensure that the convicts of the same case did not end up suffering different punishments because of separate legal processes.

In the Nirbhaya case, the first death warrant was issued on 7 January, two years and eight months after the Supreme Court confirmed the sentences. Since then, the convicts are filing petitions at different times, so that the process is protracted.

As long as a convict’s petition remains pending, none of the other co-convicts can be executed. Four petitions for each convict means 16 petitions,  one after the other, will be processed before the death warrant is implemented.  

THE GAME OF PETITIONS. 

Now let’s have a quick look at the three petitions, REVIEW PETITION,  CURATIVE PETITION, MERCY PETITION. 

Review Petition:

Article 137 of the Constitution provides that subject to the provisions of any law and rule made under Article  145 the Supreme Court of India has the power to review any judgment pronounced or order made by it. In India, a binding decision of the Supreme Court/High Court can be reviewed by filing a Review Petition.

The parties aggrieved on any order of the Supreme Court due to some apparent error regarding the case can file a review petition. Considering the principle of stare decisis, courts generally do not unsettle a decision, if it is not a strong case.

Chances of success in filing this petition are very low as it goes to the same panel which has heard the case previously and has given the judgment on it. case convict  Pawan Gupta has filed a review petition against the Supreme  Court's decision to dismiss his claim that he was a juvenile at the time of the gruesome rape and murder case that shook the nation in 2012.

Pawan Gupta and three others were earlier scheduled to be hanged on February 1. The Supreme Court had earlier rejected Pawan Gupta's plea of juvenility and had held that the issue has been decided based on documents and cannot be re-exercised. Yet, Pawan Gupta has once again filed a review petition just a day ahead of his scheduled hanging along with the three other convicts. 

The death row convicts had on Thursday moved a trial court with a plea to adjourn the February 1 execution "sine die" saying they are yet to avail their remaining legal remedies. The Supreme Court dismissed the third curative petition on Thursday.

Convict  Vinay Kumar Sharma had on Wednesday filed a mercy plea before the President and the apex court today rejected the curative petition of Akshaya Kumar Singh, who is likely to file a clemency plea soon. Of the four convicts, Mukesh Kumar Singh has exhausted all his legal remedies, including the clemency plea which was dismissed by President Ram Nath Kovind on  January 17, and the appeal against the rejection was thrown out by the Supreme Court on Wednesday. 

Curative Petition:

The concept of ‘Curative petition’ was evolved by the Supreme Court of India and it was to answer whether an aggrieved person is entitled to any relief against the final judgment of the Supreme Court, after the dismissal of a review petition.

The Supreme Court, within the aforesaid case, commands that to stop the abuse of its methods used in administering justice and to reduce the miscarriage of justice, it may reconsider its judgments in the exercise of its inherent powers. In the Nirbhaya case, the Supreme Court of India rejected their pleas.

Mercy Petition:

After facing rejection from all sides, the Mercy  Petition is the last step that one can take in the context of the Indian Judicial System. When a person loses all the remedies available to him/her under all the laws then he files a Mercy  Petition before the President of India or the Governor of the State in the state where that person resides.

By Article 72 of the Indian Constitution, the President has the power to reprieve,  respite, or remit a punishment pronounced even by the apex court of law. He is also entitled to grant pardon but the power is not discretionary as it requires the consultancy of the Council of  Ministers.

President Ram Nath Kovind rejected the mercy petition of the last of the four death row convicts in the gang rape and murder of the 23-year-old medical student in Delhi dubbed  "Nirbhaya". With this, the convicts exhausted all the options for relief from the death sentence.

The authorities of Tihar jail, where the men are lodged, said they would approach courts for a fresh date of execution, which has already been deferred thrice. 

CASES RELIED UPON WHILE HEARING NIRBHAYA CASE. 

In Bachan Singh V State of Punjab, the Hon’ble Supreme Court held that gross depravity provided a valid and special reason for the sentence of death. The excessively inhuman or beastly manner in which the murder commission has taken acts as an established indicator of the depraved nature of the perpetrator.  Furthermore, it is not appropriate to accept the circumstances of the crime and the circumstances of the perpetrator in two different watertight compartments. When a murder includes extreme depravity, it would be an aggravating case for the imposition of the death penalty. 

In Machhi Singh V State of Punjab, the court emphasized that the humanistic edifice forms the basis of the concept of “reverence for life. If a person breaches this principle by killing another member, the community is at stake. This action puts the society at risk.

The death penalty can only be given in the rarest of rare cases. If the collective conscience is so shocked that the community wants the holders of the judiciary to enforce the death sentence regardless of their subjective view as to whether or not it is beneficial to maintain the death penalty.

Death penalty should be given if the murder is committed in an excessively barbaric, disgusting, diabolical, revolting, or ludicrous manner to stir up severe and serious indignation in the community and when the victim is subjected to horrific acts of abuse or cruelty to bring about the murder of the victim. 

In the case of Devender Pal Singh vs. State (NCT of Delhi), it was held that if the community’s collective conscience is so shocked, the court must pronounce the death penalty. 

In the case of Ram Singh vs. Sonia & Ors, it was held that it would be a failure in the system of justice to not hand out the death penalty, in a case where the crime was most grotesquely and revoltingly committed. 

In the case of C Munniappan vs. the State of Tamil Nadu, it was held that the death penalty should be given in the manner the offense is committed. If it is committed in a very brutal, diabolical,  grotesque, and shocking to society’s collective conscience, then the death penalty must be provided. 

In the case of Ajith Singh Gujral v. State of Maharashtra, it was held that there is a need for a distinction to be made between ordinary murders and grotesque, ghastly or horrific murders.  Although the life sentence in the former is to be issued, the latter falls into the category of the rarest cases, and so the death penalty should be issued. 

In the case of Sunder vs. State, it was held that the aggravating factors include if the accused was found guilty of two heinous offenses, which are independent of one another, provides for the death penalty; no prior enmity between the two sides, no extreme and sudden provocation that compelled the accused to take a life; or a serious mental perversion; as well as the brutality of the crime. 

Coming to the issues that were raised by the convict’s counsel,  one must know that the SC had repeatedly held that the accused’s young age is not by itself a determining factor against the death sentence being awarded. Instead, all the conditions must be taken together, and the proper weighing of each situation is needed. 

The Supreme Court instead re-held that the death sentence can be given despite the convict’s young age. This can be seen in the case of Mohammad Ajmal Kasab vs. State of  Maharashtra and Atbir vs. State(NCT of Delhi). 

The Court also relied on the case of Gurvail Singh & Anr. vs. the State of Punjab, where it was held that to impose the death penalty, aggravating circumstances (crime test) must be completely met and no mitigating circumstance (criminal test) in favor of the accused should be present. If all the requirements are met against the accused, then the Court will eventually implement the Rarest of Rare Cases Test, which relies on the interpretation of the public. 

WHAT IS JUSTICE VERMA COMMITTEE REPORT AND NIRBHAYA FUND?

The committee was made after the Nirbhaya case to provide for quicker trials and enhance punishment and criminal provisions in the law for people who are accused of committing sexual offenses against women. Some of the progressive changes  which the committee suggested are: 

• • According to the committee rape and sexual assault don’t seem to be simply crimes of passion however it is an expression of power. Rape should be treated as a  separate offense and it should not be limited only to the penetration of the vagina, mouth, or anus and its scope should be widened. Any other non-consensual penetration whose nature is sexual should be included in the definition of rape given under various laws. 
• • It recommended that marriage should not be considered as a license to perform sexual offenses. 
• • It counseled those non-penetrative forms of sexual contact should be regarded as sexual assault. The offense of sexual assault is to be outlined to include all forms of non-consensual or non-penetrative touching of sexual nature. 

And many more changes were made by this committee. 

As a reaction to the public outrage and reaction, the then Finance  Minister, P. Chidambaram, allocated a lot of money for tackling women’s issues. He announced the “Nirbhaya Fund” in  Parliament on his Budget Speech 2013-14.

This showed an acceptance, either willing or forced, about the dire situation of women’s safety in India. The initial amount allocated for the same was a whopping amount of INR 1000 Crore. Further, every year the same amount is reallocated in the budget. 

CONCLUSION 

India is known for a lot of things. The positive ones are its culture,  diversity of religion, cricket prowess, and beautiful scenic beauty. But often, a few incidents take place which make these positive factors take a backseat in foreign, and even domestic public opinion.

The Nirbhaya incident was the spark which ignited the fire of negative public opinion about India. Almost non-existent implementation of government schemes for the betterment of women’s situation is one of the main reasons for the dire situation of women in India. Although the same callous attitude is visible in a lot of places, it affects the problem of women more.  

This is because the callous attitude is not just administrative or political, it is rooted in society and morality. But now it’s time for all of us as a citizen of this country to raise our voices against this cruelty.