Curative petitions were filed in the Supreme Court by two convicts in the Nirbhaya case on Thursday. The petitions come just days after a Delhi sessions court scheduled the execution of the four convicts at Tihar Jail on January 22.
Also read: Nirbhaya case convict breaks down after hearing execution date
Vinay Sharma and Mukesh, in separate curative petitions, said there had been a sea change in the death penalty jurisprudence. They argued that ignoring the subsequent changes in the law against the death penalty would be a “gross miscarriage of justice”.
A curative petition is a rare remedy devised by a Constitution Bench of the Supreme Court in its judgment in the Rupa Ashok Hurra case in 2002. A party can take only two limited grounds in a curative petition — one, that he was not heard by the court before the adverse judgment was passed, and two, the judge was biased. A curative petition, which follows the dismissal of a review petition, is the last legal avenue open for convicts in the Supreme Court.
Sharma was the first of the four convicts to file a curative petition, arguing that there had been “a change in the law on death sentence in India” since the death penalty was first confirmed for the Nirbhaya convicts in 2017.
“After the pronouncement of judgment in 2017, there have been as many as 17 cases involving rape and murder in which various three-judge Benches of the Supreme Court have commuted the sentence of death,” the petition contended.
It argued that this “corpus of case law” had caused a “definite change” in the sentencing jurisprudence. Hence, this would require Sharma’s case to be reheard.
The court had recently dismissed a review petition filed by another of the four condemned men, Akshay Singh, to review its May 5, 2017 judgment confirming the death penalty.
The court had also refused his plea to grant him three weeks time to file a mercy petition before the President of India.
A Bench led by Justice R. Banumathi had said it was open for the Nirbhaya convicts to avail whatever time the law prescribes for the purpose of filing mercy pleas.
Akshay (33), Mukesh (30), Pawan Gupta (23) and Sharma (24) brutally gang-raped a 23-year-old paramedical student in a moving bus on the intervening night of December 16-17, 2012. She died of her injuries a few days later.
The case shocked the nation and led to the tightening of anti-rape laws. Rape, especially gang rape, is now a capital crime.
One of the accused in the case, Ram Singh, allegedly committed suicide in the Tihar jail. A juvenile, who was among the accused, was convicted by a juvenile justice board. He was released from a reformation home after serving a three-year term.
