Nirbhaya Case: How Convicts And Courts Contributed To Delay Justice

South Delhi. December 16, 2012. A 23-year-old paramedical intern was beaten, raped and brutalised by five men and a juvenile on a bus. She died of internal wounds after being thrown out of the bus. The case inspired nationwide public protests and a demand for special measures on women’s safety. The death of Nirbhaya—or fearless, as she reportedly fought back against her attackers—forced the government to set up two inquiry commissions to look at the treatment of women in India, amend rape laws and fast-track trial of such cases.

December 2019. In the seven years since that horrific tragedy, the case lingers. Considered a fit case to be fast-tracked, it took four-and-a-half years for all the three courts—trial, high and supreme— to hear and pass their verdicts.

The juvenile (now an adult) is out after spending three years in a reformatory; one of the adult convicts died by suicide in jail; and the Supreme Court convicted and sentenced the other four to death on May 5, 2017. But they are yet to be hanged. For over two-and-a-half years, convicts Mukesh, Pawan, Vinay and Akshay have been exploiting the law to delay the hanging. If one goes by the legal options still available to them, it might take a couple of more years to send them to the gallows. Was there a way to wrap the case quickly? Here’s why justice is delayed...

REVIEW PETITION: Once the Supreme Court awarded the death sentence on May 5, 2017, the four convicts should have filed a review petition within 30 days as per law. But the law makes a provision for condonation of the delay if the convict gives a convincing reason. The four convicts are exploiting this to the fullest.

REVIEWS DELAYED: All four filed reviews on different dates with long delays: Mukesh waited six months to file his on November 6, 2017, through advocate M.L. Sharma. Advocate A.P. Singh, representing Pawan, Vinay and Akshay told the SC on November 11, 2017, when the court started the hearing Mukesh’s petition, that he would file the three convicts’ plea in four weeks. When the SC concluded hearing Mukesh’s case on December 12, 2017, Singh again told the court that Vinay and Pawan would file it in three days, while Akshay would need 10 more days. He filed petitions for Vinay and Pawan within a few days, but Akshay didn’t till the time the court dismissed the review pleas of the other three on July 9, 2018.

MORE DELAY: Akshay filed a review petition on December 9, 2019—almost two-and-a-half years after the SC awarded the death sentence and one-and-a-half year after the court dismissed the fellow convicts’ review petition. “The delay was due to the death of his mother. His father-in-law keeps unwell. He belongs to a poor family in Aurangabad. Please try and understand that he is not like other rape accused who are well off and can afford all sort of luxuries in life,” advocate Singh said in defence.

MERCY PLEA: As per law, once a review petition is dismissed, a convict can file a curative petition within 30 days of the date of dismissal. The curative petition’s dismissal follows a mercy petition to the President. In this case, Vinay allegedly filed for mercy in the first week of December through Tihar jail authorities. But his lawyer, Singh, says he never filed any. “After his review petition was dismissed, he has curative petition as one more legal remedy before mercy petition. Why will he file for mercy then? It is the conspiracy of the jail authorities,” Singh said.

NO CURATIVE PETITION: After their—Mukesh, Pawan and Vinay— review petitions were dismissed on July 9, 2018, none of them filed curative petitions till date. “It is quite obvious that they are trying to gain as much time as possible and delay the execution as far as they can,” senior SC lawyer Rakesh Dwivedi says.

BENCH DELAYED: The top court admitted the matter for hearing on March 15, 2014. But it took over three years to give the final verdict on May 5, 2017. It took a year and seven months to constitute an appropriate bench for the case.

NO DAILY HEARING: The SC had about 40 hearings for over a year and a month. Legal experts feel daily hearing, like it did with the Ayodhya case, would have wrapped up Nirbhaya case quickly. “It was not a civil case like Ayodhya. But still, it could have been expedited in four months with daily hearing,” says Nishant Srivastava, a lawyer in Delhi’s Saket court. He suggests high courts and the SC can fast-track a hearing by having a dedicated bench to hear specific cases of heinous crime such as rape and murder.

DELAYING TACTICS: In the high court, one of the pleas was that the trial court proceedings were in English and the convicts couldn’t understand what’s written on the documents. The Special Investigation Team (SIT) worked day and night to translate thousands of pages in Hindi.

FALSE ALIBI: In the fast-track court, the defence lawyers allegedly created false alibis to show that the suspects were not in Delhi at the time of the crime. The prosecution had to counter every alibi to make the investigation foolproof.

JUVENILE HURDLE: Two of the four suspects claimed they were juvenile (underage for prosecution as adults) when the offence was committed. The SIT team had to visit their villages in Bihar and Uttar Pradesh to collect evidence to counter that. “The civic bodies and educational institutions from where we had to collect birth certificates and relevant documents didn’t work on weekends and holidays. It delayed the trial for several days. The fast-track court should order theses institutions to expedite the process,” says a police officer associated with the case. Besides, police alleged that defence lawyers and their witnesses tried to delay the matter on one pretext or the other. Amidst all that, a personal tragedy kept the judge off the case for almost a week.

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Slow Track

• Dec 16, 2012 Date of crime

• Jan 2, 2013 Police file charge-sheet

• Jan 3-Sep 13, 2013 Fast-track trial

• Nov 1, 2013-Mar 13, 2014 Delhi HC trial, verdict

• Mar 15, 2014-May 5, 2017 Supreme Court trial, verdict