When Supreme Court of India confirmed death sentence to the rapists of Nirbhaya, entire country rejoiced and many said finally justice though delayed has been delivered. Except for few NGOs and the family members of the rapists, everyone congratulated Supreme Court for the tough punishment to the rapists who raped 23 year old Jyothi Singh in a moving bus in Delhi in the most brutal manner and then murdered her in 2012.
Now with all doors closed, Nirbhaya rapists are coming with another ploy to escape death. Already the defense counsel announced that they will file review petition. Experts say the following are the options available for the rapists to escape death.
Review Petition
They can file review petition as article 137 of the Constitution provides for review of the verdict pronounced by the Supreme Court. The filing of review petition is governed by the Supreme Court Rules.
Anil Kumar, Supreme Court lawyer says "A review petition should be filed within 30 days of the pronouncement of judgment by the Supreme Court." He however added that in the case like Nirbhaya gang rape, review petition can only be entertained n the ground of an error apparent on the face of the record.
However the chances of review petition getting favourable result is very low as it generally goes to the same judge if not retired or the same bench which previously heard the case.
Judges can also first examine the merit of the review petion in their chamber. Atul Kumar adds There is no open court hearing, so there is no chance of oral arguments by the counsel during the examination of the review petition,"
Curative Petition
Curative petition is not mentioned in the Constitution, unlike a review petition. It is the creation of the judiciary. Before 2002, there was nothing like curative petition. It can be filed after the Supreme Court has dismissed the review petition against the final conviction.
Atul Kumar says "The apex court created the system of curative petition to ensure that there was no miscarriage of justice. But, some use this tool to delay final settlement of the judicial process," It will also be first decided in the chamber of judges just like review petition. On specific request, the judges may allow the open court hearing. court can agree to hear a curative petition only if the petitioner proves that the final conviction violates the principle of natural justice.
Accrding to Atul Kumar,rapists in the Nirbhaya gangrape case will have to get their curative petition certified by a senior advocate pointing out substantial grounds for admitting the same by the Supreme Court.
If the majority of the judges agree that the curative petition has merit in it, the same can be listed for hearing in the court preferably by the same bench, which disposed off the case last time.
The Supreme Court has also made it clear that a curative petition must be viewed with circumspection and should be a tool which is rare than regular in use.
In 15 years only two curative petitions have been successful.
Mercy Petition
When all the doors of judiciary are shut, one can file mercy petition approaching President of India. President cacn commute a death sentence under Article 72 of the constitution. However President has to act on the advice of the council of Ministers. . Under the existing rules, the Ministry of Home Affairs is the nodal agency and according to its opinion the President decides the matter.
Nirbhaya rapists can file a mercy petition through their lawyer from Tihar jail or families or prison officials. They can even send written petition or email their plea to the Home Ministry of the President's Secretariat.
Atul Kumar says "Now, even the decision of the President on the mercy petition can be challenged in the Supreme Court on the ground or inordinate delay," There is no time frame within which the Preisdent is bound to decide on the mercy petiton. Already there are lot of mercy petitions before President's office.
However President Pranab Mukherjee set a record by clearing as many as 32 mercy pleas, some of them pending since 2000, when KR Narayanan was the President. Of them President rejected 28 or little less than 90% of the petitions.
