Nirbhaya’s Rapists Move to the ICJ: A Concocted Delay Tactic

*Vanaj Vidyan

INTRODUCTION

The suspicious encounter of the four accused on December 6, 2019 in the Priyanka Reddy rape and murder case by the Cyberabad Police merely a week after their arrest was welcomed with #SpeedyJustice trending across social media platforms. The brutal rape committed in the city of Hyderabad served as a puissant reminder of the inhuman crime of 2012 in Delhi, except that the system in this instance had worked as designed and designated by law and the convicts were thence alive for more than seven years before being hanged till death on March 20, 2020.

On March 16, three of the four convicts on death-row in the Nirbhaya case moved an application to the International Court of Justice at The Hague to stay their execution slated four days later. It came as an unanticipated addition to a protracted list of successful delay tactics employed by lawyers of the convicts. Coming at a time where legal remedies of all convicts were ‘finally’ exhausted with dummy executions being carried out, moving to the ICJ could have dichotomously delayed execution but either way, it would be the final nail in the drama this death sentence had culminated into- erosion of faith from the judicial process.

The accused were awarded death sentence for 13 offences in September 2013 by the trial court. Voluminous litigation followed over the course of the next six years. In December 2019, the Tihar jail authorities notified a period of seven days to the convicts to file mercy petitions before the President. The tangible miscarriage of the system, however, started becoming prominently visible when the first death warrant issued on January 7 had to be nullified due to the pendency of a recently filed mercy plea. Fresh death warrants issued twice later, January 17 and February 17, again had to be set aside.

The convicts successfully delayed their hanging thrice by employing wide-ranging delay manoeuvres. Multiple curative petitions, mercy petitons filed days before the scheduled date of hanging, second mercy pleas, random claims of juvenility, approaching the Election Commission to declare the Government of Delhi illegal, petitions of conspiracy by lawyers, pleading permission for euthanasia, pollution shortening life and the spread of COVID-19 affecting the impartment of justice were merely selected of the numerous tactics used in the past two and a half months.

Another notable tactic was the filing of cases in multiple courts on copious pretexts to plead pendency and stay execution. Prior to their execution, a Special Leave Petition was slated for hearing before the Apex Court on March 23. A writ petition in the Delhi High Court challenging the rejection of the mercy petition by the President had been filed by convict Vinay Sharma. A plea was pending in Delhi’s Karkardooma Court regarding an alleged custodial attack on convict Pawan Gupta, slated to come up on April 8 for hearing. The wife of Akshay Singh, another convict, had moved a divorce petition pending before an Aurangabad court. An appeal lied against Awninder Pandey, Nirbhaya’s companion on the unfateful night, alleging false depositions he gave in exchange of money. This pendency was cited before the courts to support the convicts’ claim that their legal remedies remained unexhausted and that hanging them would be justice incomplete. These cases proved, as was the anticipation, insufficient to justify staying the execution. However, the latest of these cases- a letter to the International Court of Justice [ICJ] on March 16, was a delay tactic that could potentially achieve the convicts’ end goal of maligning the Indian judicial process that convicted them.

APPLICATION BEFORE THE ICJ

The ICJ is a judicial organ of the United Nations wherein the locus standi rests solely with States. The application of the convicts to the ICJ would not be admitted. Furthermore, India’s Declarations recognizing the jurisdiction of the Court as compulsory made on 27 September 2019 explicitly declare that disputes in regard to matters essentially within the domestic jurisdiction of India would fall outside the ICJ’s jurisdiction. The ICJ does not function as a higher Court of appeal, and cannot order a stay wherein protracted investigation and litigation has ensued in the highest courts of India. Yet the filing of such an application presents a challenge before the Indian judiciary that would determine its credibility of faith amongst the masses and its international perception- no matter whichever side it rules for.

THE DILEMMA AND THE SUBSEQUENT HANGING

The elaborate functioning of the ICJ guaranteed that the admission or dismissal of the case would not come prior to the scheduled date of hanging. The Court was consequently confronted with two diverging paths- to stay the execution on the ground of this pendency, or to continue as per schedule disregarding the application. We now know the Court’s position, but I would analyse both these options as they existed on March 19.

In deciding to proceed with the hanging without waiting for the procedural formalities to be completed in the ICJ, the Court conveys a binary message to the international community. First, a domestic court adjudicating on behalf of an international court conspicuously with regard to the preliminary legal question of jurisdiction. Article 36, paragraph 6 of the Statute of the ICJ provides that in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court. Article 79 of the Rules of Court  lays down the arrangements for filing preliminary objections such as jurisdiction. A domestic court functioning under municipal law cannot decide on the ICJ’s jurisdiction, howsoever ostensible the outcome of such an objection may be. In doing so, a municipal Court transcends its jurisdictional ambit. An ancillary message signposted, but one with an impact perchance more profound, is the country’s blatant disregard, impudence and impertinence not only to the ICJ and the established principles of international law, but also to Article 51(c) of the Constitution. Deciding a case on behalf of the ICJ to hang four humans when their claim is that legal remedies remain unexhausted manifestly materializes as a rushed step of giving into public outcry and outrage, and could very well be perceived as a human rights violation. And this is precisely what the application to the ICJ by the convicts sought to achieve by alleging they had been treated as “guinea pigs”. That even if they are hanged, they prove, or at least raise very pertinent questions from the international community, not only on their hanging but on the entire judicial process of India.

The alternative of staying the execution for the fourth time would have further eroded the confidence of the general populace in our criminal justice system. Be it the throbbing protests that brandished on the streets of Delhi in December 2012 or the social media furore every time the death warrant was issued and subsequently cancelled, the Nirbhaya case resonates amongst the masses and shall be summoned by them in the coming years as a report card of the Indian judiciary. Every cancellation of the death warrant was a fight going much beyond the four rapists. It symbolised the seven-year long and ongoing struggle of a lone woman fighting for justice for her daughter against the system that consistently engraved and emboldened its image in semblance to a real-life epitome of the tareekh-pe-tareekh (date-after-date) notion the masses have come to dread and now openly condemn. The Supreme Court aptly highlighted the same concern in Shanti Bhushan v. Supreme Court of India, “The faith of the people is the bed-rock on which the edifice of judicial review and efficacy of the adjudication are founded. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary.”

THE ROAD AHEAD

The present system allows multiple options for those waiting on death row that can be applied in numerous manoeuvres to delay the execution. Filing curative petitions, second curative petitions, mercy pleas before the President, review petitions against the President’s decision, and second mercy pleas are measures that should not exist post the issue of death warrant but preceding them. A death warrant shall be final unless some new evidence comes to light. Procedural lacunae aside, the convicts here additionally employed novel delay tactics that remain unprecedented for those awaiting death in India. These may have helped them gain a few more weeks to live, but their impact on the faith of people on the justice system is much larger.

The encounter of Priyanka Reddy’s rape and murder accused was condemned as a dark page for Indian democracy and criminal justice system by eminent members of the legal fraternity. But it was hailed and celebrated by Indian women and men. It is an unnerving gesticulation that the failure of the system in rape cases warrants for the executive to provide ‘instant justice’.

Whichever route the Court opted for, the Nirbhaya case needs to serve as a lesson to the Indian lawmakers and the judiciary that changes are necessitated and needed, notwithstanding that the hanging did in fact take place on March 20 and was not further deferred. Until then, Delhi continues justifying Hyderabad and Nirbhaya continues justifying Priyanka.

Vanaj is a 2nd year law student at Dr. RML National Law University, Lucknow. He may be contacted at vanajvidyan2@gmail.com.

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