Curative to Mercy petitions: Some legal hurdles before Nirbhaya’s killers are hanged

New Delhi, Jan 08: A Delhi court on Tuesday issued death warrants against the four convicts in the Nirbhaya murder case. The court ordered that they be hanged on January 22 at 7 am.

While the death warrant also known as the black warrant paves the way for the hanging, there are still two options available to the killers.

They could either file a mercy petition before the President or prefer a curative plea in the Supreme Court. The curative plea is the final appeal in the Supreme Court and is filed after a review petition is rejected.

The lawyer for the convicts said that they would prefer a curative petition in the Supreme Court. If the Curative Petition is rejected by the Supreme Court then a Mercy Petition before the President of India could also be preferred.

The concept of a Curative Petition first came up in the Supreme Court in the Rupa Ashok Hurra vs Ashok Hurra case in 2002. The question that came up was whether an aggrieved person was entitled to relief after a review petition was dismissed.

The court held that to cure gross miscarriage of justice and to prevent abuse of its process, it may reconsider its judgment in the exercise of the inherent powers vested with it. For this purpose, the Supreme Court said that a curative plea can be filed.

In order to file a curative plea, a petitioner will have to establish that there was a genuine violation of principles of natural justice. The petitioner shall also state that the grounds mentioned in the plea were taken up in the review plea and it had been rejected by circulation.

The petition is then circulated before the Bench that heard the case and also the three senior-most judges of the Supreme Court. If the majority of the judges are convinced, then it would be sent to the same Bench that heard the plea. In case it is found that the case lacks merit, then exemplary costs could be imposed.

The powers of the President of India:

The President under Article 72 has the powers of pardoning a convict. Article 72 says that the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence-

• in all cases where the punishment or sentence is by a Court-martial;
• in all cases where the punishment or sentence for an offence against any law relating to a matter to which the executive power of the Union extends;
• in all cases where the sentence is a sentence of death.

There is also a provision under Article 161 under which the Governor of a State can grant pardon. This can, however, be challenged by the state.

In the Kehar Singh vs Union of India judgment of 1988, the Supreme Court had said that the grant of pardon by the President is an act of grace and therefore cannot be claimed as a matter of right.

In the Dhananjoy Chatterjee vs State of West Bengal case of 1994, the Supreme Court held that the powers under Article 72 and 161 can be exercised by the states and centre and not by the President or Governor on their own.

The state and centre would give advice on the matter. The recommendations by the government could be either to grant pardon, commute the sentence, remission, reprieve or grant respite.

Once the President rejects a mercy petition, it could be subject to judicial review. If the court finds that the president had not acted arbitrarily or unreasonably, then the decision cannot be interfered with.