ICJ, Nirbhaya convicts' last resort, holds little hope

Eight years after committing a brutal rape and murder that shocked the conscience of the nation, and having been sentenced to death, three of the four convicts, who have exhausted all legal remedies, are now knocking on the doors of International Court of Justice (ICJ), the highest court in the world.

While Akshay Singh (31), Pawan Gupta (25) and Vinay Sharma (26) have moved the ICJ seeking a stay on the death sentence, Mukesh Singh has not sought this remedy.

According to their lawyer AP Singh, the ICJ can step in to stay the execution as it intervened in the case of Kulbhushan Jadhav, whose execution ordered by the Pakistan court for alleged spying there was stayed by the ICJ.

Citing coronavirus, he said everyone is aware of what is happening in the world and also in Delhi in regard to water and air. Life is going short, then why death penalty, he asked.

However, it is very doubtful whether ICJ can interfere in this case which was legally decided by the Supreme Court of India and clemency rejected by the President of India. The ICJ has no role to play as its jurisdiction comes in cases of dispute involving two countries.

The International Criminal Court, a wing of the ICJ is empowered to hear issues only relating to war crimes or armed conflict and not regular criminal matters which are decided by competent courts in the respective countries.

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Further, India has not signed the ‘Rome Statute’ governing the jurisdiction of the ICC, and hence, ICC cannot have any role in the Nirbhaya case.

Countries which are not a party to the Rome Statute are not obliged to subject themselves to the jurisdiction of the ICC. The International Criminal Court has jurisdiction only with respect to crimes committed after July 1, 2002, in countries that have ratified its treaty. However, the ICC can also prosecute if the UN Security Council refers a case to it regarding crimes committed in a country that is not a signatory to the treaty. It remains to be seen whether the UN Security Council refers the Nirbhaya convicts’ case to the ICC.

While calling the scheduled execution of convicts as hurried, secretive and illegal, the letter by lawyer AP Singh says, “I write to you to request your support and help, in whatever form, to prevent this barbaric and inhumane punishment from being inflicted upon convicts. The death penalty has no relevance in a progressive and modern International era. Inflicting it upon prisoners, who belong to the economically most vulnerable section of the society will only serve to take out international forum several steps back.”

The letter also refers to the limited functioning of the courts due to the COVID-19 outbreak. Interference of ICJ is sought on the ground that the investigation in the case was flawed and unreliable.

“Many facts of the investigation that pertain to recording of dying declaration, recording of statements of witnesses under Section 161 of the CrPC, the medical examination, holding of the test identification parade, the manner and method of search and seizure and the procedure of arrest have been seriously doubtful in this case due to international media pressure,” it said.

The letter cites refusal to let CBI investigate the incident, refusal to carry out the polygraph tests on the convicts, false testimony, death of accused Ram Singh in Tihar, as instances to allege “sheer callousness” in the matter. The letter also claims that one of the convicts, Pawan was a juvenile at the time of the incident. It was further alleged that the political class was using investigating agencies as tools for partisan politics.

Related news | 3 Nirbhaya convicts move ICJ, seek stay on execution of death sentence

Kulbhushan Jadhav case

It may be recalled that the International Court of Justice (ICJ) had delivered the verdict in Kulbhushan Jadhav case in India’s favour. The court asked Pakistan to review the death sentence awarded to Jadhav on charges of espionage and conspiracy against Pakistan. The ICJ also said that that Pakistan breached the obligations under the Vienna Convention by not informing Jadhav of his rights.

Nirbhaya case

A 23-year-old paramedic student, who has become an icon as Nirbhaya, was gang-raped inside a running bus by six persons on December 16, 2012, in Delhi. The victim was brutally assaulted and thrown out on the road along with her male friend. She succumbed to injuries a few days later. Of the six accused, one, Ram Singh, reportedly committed suicide in prison, while another, a juvenile, served the maximum punishment of three years in a reform home and was set free in 2015. The remaining four rapists were convicted and handed the death penalty by a trial court in 2013, confirmed by the Delhi High Court in March 2014 and upheld by the Supreme Court in 2017.

The court dismissed the appeals filed by four convicts — Mukesh, Pawan, Vinay Sharma and Akshay Kumar Singh — against the Delhi High Court’s order.

The court rejected the plea to commute the death sentence into life imprisonment. It described the incident as a “tsunamic shock” and said that in the instant case, the brutal, barbaric and diabolic nature of the crime is evincible from the acts committed by the accused persons. It said that the nature and manner of the crime devastated social trust.

The death of the victim took place at a hospital in Singapore where she had been taken to with the hope that her life could be saved.

Despite the progress made by women in education and various fields, and changes brought in ideas of women’s rights, respect for women is on the decline and crimes against women are on the increase, the Supreme Court observed and called for concerted efforts to prevent such crimes.

Related news | SC rejects Nirbhaya convict Mukesh’s plea seeking restoration of remedies

From May 2017, the four convicts have made repeated attempts to delay the execution by filing review petitions and curative petitions in the Supreme Court. They also pleaded for mercy with the President of India, which was rejected.

Death warrants were issued against all four convicts for execution, initially on January 22, which was postponed to February 1, March 3 and now March 20 at 5.30 am. The convicts utilised every rule and legal provision to delay the inevitable and their attempt to move the ICJ is a last-ditch attempt.

On March 15, the 13 family members of all the convicts appealed to President Ram Nath Kovind go grant them death by euthanasia, also known as mercy killing. It is an act or practice of killing or intentionally ending a life to relieve pain and suffering for reasons of mercy.

Earlier on Monday, the Supreme Court rejected the plea of Mukesh Singh, one of the four convicts, seeking CBI probe and restoration of all his legal remedies, alleging that his earlier lawyers misled him.

The convict had sought quashing of all orders passed by courts and the rejection of his mercy petition by the President since the day his curative petition was dismissed by the apex court, on the ground that the earlier lawyer Vrinda Grover had misled him.

Last days

With all legal remedies having failed, Tihar Jail authorities have requested their counterparts in Uttar Pradesh for the service of hangman Pawan Jallad, from Meerut. According to jail authorities, dummy executions will be conducted after the arrival of Jallad. Health checks-up of the convicts is being done once daily. They are also being counselled on regular basis.

The last execution in India took place on July 30, 2015 when Yakub Memom, a convict in the 1993 Bombay bomb blast case, was hanged. Prior to him, Afzal Guru, convict in the 2001 Parliament attack case, was executed on February 9, 2013. Earlier Ajmal Kasab, a Pakistani based convicted was hanged to death on November 21, 2012 for his role in the November 26, 2008 Mumbai terror attack.

The last person to be hanged for rape and murder of a teenage girl was Dhananjoy Chatterjee on August 14, 2004 at Alipore jail in West Bengal. If the Nirbhaya convicts are hanged on March 20 as scheduled, it would send a warning signal to accused in heinous crimes of rape and murder and act as a deterrent in preventing such crimes against women.