Death warrant of Delhi gangrape convicts brings to fore some grey areas: Experts

As per the usual course of procedure, death warrant is not issued until the convict exhausts all the remedies available to him.

The death warrant issued on Tuesday, ordering the execution of Nirbhaya rape convicts on January 22 has brought to fore some grey areas when it comes to execution of death row convicts, legal experts said. As per the usual course of procedure, death warrant is not issued until the convict exhausts all the remedies available to him.However, in this case none of the convicts have filed curative petitions in Supreme Court or mercy petitions before the President, they said.

Father of the 23-year-old physiotherapy student who was gang-raped on Dec 16, 2012, at a Delhi court which issued a black warrant to execute the four men convicted in the case, New Delhi, January 7, 2019. (Biplov Bhuyan/HT PHOTO)

Curative petition is a remedy established by the Supreme Court through its judgment in Rupa Asok Hurra v. Ashok Hurra.

“This is a grey area. If curative petitions are filed and Supreme Court issues notice, the death warrant cannot be executed unless the curative petition is decided”, said senior advocate Rebecca John.

Curative petitions are heard in chambers and decided by judges after going through the written submissions without any oral arguments by lawyers. However, a mercy petition is a Constitutional remedy which can be traced to Article 72 of the Constitution. Can this right be overlooked on the ground of delay when issuing a death warrant?

“The convicts can file mercy pleas before the President, which again must be decided before the death warrant can be executed”, said John.

This view was echoed by Dr. Anup Surendranath, assistant professor at National Law University, Delhi and executive director at Project 39A.

“A mercy petition is a well-entrenched constitutional remedy that cannot be treated with such procedural callousness. The right to file mercy plea is provided under Articles 72 and 161 of the Constitution. When a judge knows that constitutional remedies are remaining, I am unsure of the logic of issuing this warrant,” said Surendranath.

“If there was a concern that there was a delay in filing mercy petitions, instead of issuing the death warrant, the judge should have addressed that concern rather than taking this drastic step,” said Surendranath.

He also said that the death warrant also violates the Delhi prison manual and Supreme Court judgments.

“This death warrant is in blatant violation of the Delhi prison manual which is explicit that the sessions court cannot issue a death warrant until the mercy is rejected. This also disregards the Supreme Court decisions in Shabnam v. Union of India and Shatrughan Chauhan v. Union of India,” opined Surendranath.

According to Surendranath, the judge by prescribing January 22 as the date of execution of convicts has effectively laid down a time frame for the President to decide the mercy petition, if the convicts choose to exercise that right.

“The President under the Constitution is under no obligation to decide a mercy plea within any time frame. Thus, it (death warrant) is giving a go by to procedural protection. The Supreme Court has been very clear that death warrant should not be issued without exhausting all remedies, since it amounts to putting convicts under the fear of immediate execution,” said Surendranath.