Nirbhaya gangrape case: 3 options that 4 rapists may use to delay hanging

The convicts in the Nirbhaya gangrape case have three more legal options available before them after the Supreme Court held the death sentence confirmed by the Delhi High Court. 

More than four years after Nirbhaya was gangraped and brutalized, leading to her death, four of the six accused were pronounced guilty by the Supreme Court yesterday (read full judgment). One accused Ram Singh committed suicide in Tihar jail.
The other accused turned out to be a juvenile when he was involved in the crime. He was tried by the juvenile justice board.
The juvenile was sent to a remand home. An NGO is trying to rehabilitate him. The then juvenile accused is now reported to be working as a cook somewhere in the coastal region of southern India.

The judicial process in the Nirbhaya gangrape case has gone through all the three tiers of judiciary - fast track trial court, the Delhi High Court and the Supreme Court. At every stage the four convicts were found guilty and awarded death penalty.
But, the convicts still have some options left. They are likely to avail all the options to delay hanging.
REVIEW PETITION
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.
Supreme Court lawyer Atul Kumar said, "A review petition should be filed within 30 days of the pronouncement of judgment by the Supreme Court."
According to the Supreme Court Rules, a review petition, in a criminal proceeding like Nirbhaya gangrape case, can only be entertained on the ground of an error apparent on the face of the record, Atul Kumar added.
The chances of the success of review petition are very low as it generally goes to the same judge, if not retired, or the bench, which heard the case previously.
Secondly, the judges first examine the merit of the review petition in their chamber only. "There is no open court hearing, so there is no chance of oral arguments by the counsel during the examination of the review petition," Atul Kumar said.
If the judge finds something substantial in the review petition that the matter could be listed for hearing in the open court.

In the Nirbhaya gangrape case, the counsels of the convicts have said that they will file a review petition. They will have to go through the same procedure.
CURATIVE PETITION
Unlike a review petition, there is no mention of a curative petition in the Constitution. It is at the judiciary's creation. Before 2002, there was no such thing as curative petition in the legal lexicon of Indian judiciary.
A curative petition can only be filed after the Supreme Court has dismissed the review petition against the final conviction.
"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," said Atul Kumar while pointing out the inherent judicial dilemma.
Like review petition, a curative petition is also usually first decided in the chamber of the judges. On specific request, the judges may allow open court hearing.

The Supreme Court has laid down detailed procedure for filing a curative petition. The court can hear a curative petition only if the petitioner establishes that the final conviction violates the principle of natural justice.
The convicts 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, Atul Kumar said.
The certified curative petition will then by circulated first to the three senior-most judges (not necessarily the Chief Justice of India), and then the judges, who passed the final judgment of conviction.
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 the 15 years since the system of created, only two curative petitions have been successful. However, the low success rate is unlikely to deter the Nirbhaya case convicts from availing this option.
MERCY PETITION
When the doors of judiciary are shut on a convict, he can pray for mercy from the President of India. Under Article 72 of the Constitution, the President can commute a death sentence.
In exercising his power to grant mercy, the 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.
The convicts of the Nirbhaya gangrape case can file a mercy plea from Tihar jail through their lawyer, families or prison officials. They can send written petition or email their plea to the Home Ministry of the President's Secretariat.
"Now, even the decision of the President on the mercy petition can be challenged in the Supreme Court on the ground or inordinate delay," Atul Kumar said.

There is no fixed time frame within which the President is bound to decide on the mercy plea. This has resulted in the past a huge pile of such petitions at the President's office.
But, President Pranab Mukherjee has set a record in this regard. His desk was reported to be clean in the month of January this year. President Mukherjee has cleared as many as 32 mercy pleas, some of them pending since 2000, when KR Narayanan was the President.

Of 32 mercy pleas, Mukherjee rejected 28 or little less than 90 per cent of the petitions were rejected. The rapists of Nirbhaya may still move the office of the President seeking mercy for what the Supreme Court described as 'brutal, barbaric and diabolic' crime.