Nirbhaya’s killers to hang: Wait, there are two minor legal hurdles left

New Delhi, Mar 06: An ordeal is set to end on March 20, 5.30 am, if the hanging of Nirbhaya's killers goes through.

A Delhi court fixed a fresh date for the hanging after the mercy petition filed by Pawan was rejected by the President of India on Wednesday. It is mandatory to give a death row convict 14 days time, once a mercy petition is rejected. Incidentally this is for the fourth time that a date has been set for the hanging since January.

The convicts have used to their advantage a law that says that in a crime involving more than one convict, the hanging should take place together. This is because they have been convicted by a common order for a common offence.

For a death row convict, there are several options available. Once the trial court orders a death sentence, it is mandatory that this order is confirmed by the jurisdictional High Court. Once the HC upholds the death sentence, the convicts have the option of filing an appeal before the Supreme Court. If the SC rejects their plea, then they can move the top court again in the form of a review petition. Once the review petition is rejected, they can prefer a curative petition.

After the curative plea, they have the right to file a mercy petition before the President of India. The mercy plea is decided after taking into account the recommendation of the Union Home Ministry. There is however no rule that bounds the President to act in accordance with the recommendation of the Home Ministry.

The convicts after the rejection of a mercy petition also have the option to challenge in the form of a writ before the Supreme Court. In the Nirbhaya case, both Mukesh and Vinay have exercised the option to file a writ in the Supreme Court.

Mukesh had filed the review petition on December 6 2017, following which he preferred a curative plea on January 9 2020. His mercy petition was rejected on January 17 2020, while his writ against the mercy plea was dismissed by the Supreme Court on January 29 2020.

Vinay on the other hand filed his review plea on July 9 2018 and subsequently a curative petition on January 14 2020. His mercy plea was rejected on January 2 2020 and his writ rejected on February 14 2020.

Now both Pawan and Akshay have not yet exercised their option to file writ petitions before the Supreme Court against the rejection of their mercy petition.

Pawan had filed a review on December 15 2017 and his curative plea on February 29 2020. His mercy petition was rejected on March 2 2020.

Akshay on the other hand filed his review on December 10 2019 and the curative plea on January 28 2020. His mercy petition was rejected on February 5 2020.

It needs to be seen when Pawan and Akshay will file these writ petitions against the rejection of their mercy petitions. If they decide not to file it, then the hanging will take place as scheduled. In case they file it before the date of the scheduled hanging, there is a very good chance that the SC will reject it almost immediately. It may be recalled that while hearing the writs filed by Mukesh and Vinay, the Supreme Court had rejected it within a day.