Nirbhaya’s killers stare at the noose: The next legal procedures that remain

New Delhi, Dec 19: On Wednesday, there were two developments relating to the Nirbhaya case. While on one hand, the Supreme Court rejected a review filed by one of the killers, in another a city court gave the convicts a week's time to respond on whether they would be filing a mercy petition or not.

Nirbhaya's mother was visibly upset with the city court refused to issue a death warrant. The court, however, explained that there was a due process of law that was involved as per which the convicts were entitled to file a mercy petition.

On the other hand, the Tihar Jail authorities issued notices to the convicts about the mercy petition. As per the procedure, the convicts have seven days to file a mercy petition before the President of India.

The next process of law:

The convicts have an option to file a mercy petition before the President. A mercy petition can be filed immediately after the High Court confirms the death sentence awarded by the trial court. However, in cases of death sentences, the convicts also have the provision of moving the Supreme Court.

In the Nirbhaya case, the convicts now have two options. They could either seek mercy before the President or even filed a curative plea in the Supreme Court now that their review petitions have been rejected.

What is a curative petition:

The concept 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 a pardon:

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.

What the courts have said:

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.

Judicial review:

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.