The news of the hanging of Nirbhaya’s gangrape-murder convicts scheduled for 1st February, 2020 being postponed again has brought a sense of dismay across the country. The delay in the execution of the convict wreaks a blot on the judicial system of our country. Justice doesn’t only confine itself to the pronouncement of a sentence but it entails the proper and timely execution of it as well. However, it is extremely imperative to understand that judiciary works for serving justice and to take a life with procedure established bylaw requires the judges to reach a maximum satisfaction and if therefore there arises any reasonable doubt or any question of law or fact, then it is in the interest of all that the execution is postponed.
The lawyers and the jurists are mostly divided on Death penalty as a mode of punishment upon its purpose of attributing justice. Capital Punishment as a rule of punishability per se depends on the culpability of the criminal act and the depravity of the offender. It is an effective weapon of retributive justice carried out in many countries. Retentionists and abolitionists are divided on the crucial issue of death sentence and life imprisonment. The phrase “rarest of rare case” thus found its genesis in a 1982 in Bachan Singh v. State of Punjab, where it upheld the constitutional validity of capital punishment but added a caveat that is now famous, that death sentences would be accorded only in the “rarest ofrare” cases. It was held that:
“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law instrumentality. That ought not to be done except in rarest of rare cases where the alternative opinion is unquestionably foreclosed”
Therefore, in concluding a case to be falling under this exception requires a transcending satisfaction by the judges. Our legal system also provides for a number of provisions for the convicts to approach after the sentence of death penalty is granted in the face of appeals to higher courts, curative petition and mercy plea to the president.
The delay in execution of justice has to be seen from three dimensions. The first one is from the perspective of the victim and the family. The second is from the perspective of the accused and the last one is the effect on the society of such inordinate delay. Some jurists also call our legal system accused- oriented as it has many provisions for the accused to access but few for the victims. Therefore, a further delay in execution of death penalty proves fatal for the victim’s family whose battle for acquiring justice goes on for an indefinite time. Delay in context of justice denotes the time consumed in the disposal of case, in excess of the time within which a case can be reasonably expected to be decided by the court. Delay in disposal of cases not only creates disappointment amongst the litigants, but also undermines the very capability of the system to impart justice in an efficient and effective manner. Long delay also has the effect of defeating justice in quite a number of cases.
Article 21 of the Constitution of India implicitly guaranteesthe right to speedy trial but it is also equally true that delay has become an inherent feature of the judicial system. Therefore, it is desirable that steps should be taken to ensure the speedy trial of the cases but this should not be at the cost of the security of the society. The law makes several provisions to ensure a fair trial to a person accused of an offence. Additional safeguards are provided for a person convicted for a capital offence and sentenced to death as a consequence thereof. These additional safeguards are necessary to ensure that no mistake is committed in the award of death penalty as it is irreversible. The law mandates that the accused is made available to exhaust all provisions before his life is taken by the procedure established by law. This also stands in accordance with principles of natural justice.
An execution arising out of miscarriage of justice, therefore, is no justice at all. Like the court said that “they cannot turn a Nelson’s eye towards any convict and discriminate any convict, in pursuit of its legal remedies”. Any remedy available to any convict under the law of the land should be allowed as any execution in violation of full exhaustion of such remedies, is a mark of miscarriage of justice. Not only should justice be done, but it should also be seen to be done.