The Supreme Court on Friday said it was in no hurry to hear the appeals filed by the Centre and the National Capital Territory of Delhi (NCT) for permission to separately execute Nirbhaya convicts.

A Bench led by Justice R. Banumathi remained impassive as Solicitor General Tushar Mehta urged the court to issue a formal notice to the convicts on the appeals. The law officer intermittently asked the court to at least allow the government to serve the copies of the appeal papers to the convicts through the jail authorities.

Mr. Mehta said the “nation is losing patience” seeing the convicts misuse the legal process to delay the execution of their death sentence. “A law needs to be laid down,” Mr. Mehta stressed. But these submissions hardly created a ripple among the judges.

Instead, Justice Banumathi drew Mr. Mehta's attention to the fact that the Delhi High Court, in its February 5 judgment rejecting the government's plea to separately execute the convicts, had given the condemned men seven days to exhaust whatever remedies left to them.

If the condemned men exhaust all their remedies within that time, the question of separate hangings do not arise, the court reasoned. It scheduled the next hearing on February 11 at 2 p.m.

The High Court judgment had acknowledged that “it cannot be disputed that the convicts have adopted all the delay tactics to frustrate the death warrants”. In this context, it noted that one of the convicts, Pawan Gupta, was yet to file his curative and mercy petitions though his review petition was dismissed on July 9, 2018. However, all these factors do not allow executing them separately, the court reasoned.

But it put the four convicts on a deadline. “I hereby direct the convicts to take steps of they wish to make any type of petition before any institutions/authorities available under law within one week from today, failing which this court [Delhi HC] expects from the authorities concerned to deal as per law applicable without further delay,” Justice Suresh Kait, directed in the judgment on February 5.

The Supreme Court Bench, also comprising Justices Ashok Bhushan and A.S. Bopanna, was referring to this particular direction of the High Court while opting to wait out and see what the four convicts intend to do within the time frame of a week.

“The convicts are making a mockery of the legal process... So we have seen calculated and deliberate attempts to delay the hanging,” Mr. Mehta submitted.

Sessions Court decision

The Centre, through the Ministry of Home Affairs, and the NCT of Delhi, through the Lieutenant Governor, have challenged the February 5 High Court judgment, which was based on the government's challenge against the January 31, 2020 decision of the Sessions Court to postpone the issuance of fresh death warrants against the four convicts.

The government had argued in the apex court that, under the Delhi Prison Rules of 2018, the pendency of legal remedies or mercy petitions of other co-convicts would have no bearing on the fate of a convict whose plea for mercy had been rejected. It argued that the 2018 Rules did not prohibit the execution of the death sentence of co-convicts, one by one, on the rejection of their respective mercy petitions.

Deferring the execution of the death sentence of all the four convicts, specifically when Mukesh’s mercy plea has been dismissed by the President, has led to “gross miscarriage of justice” to the victim’s family as well as society as a whole, the government had contended.

The High Court judgment, however, held that the 2018 Rules observed that the pendency of any application filed by one convict would necessarily require the postponement of the death sentence of all his co-convicts, even those whose mercy pleas had been rejected.