Nirbhaya case: System suffers from cancer, capable of being exploited by convicts, observes HC

The Delhi High Court on Tuesday pulled up the AAP government and the prison authorities for creating a system which was "suffering from cancer" and "capable of being exploited" by death row convicts who wanted to "strategically" delay their execution.

The strong remarks by a bench of Justices Manmohan and Sangita Dhingra Sehgal came after the Delhi government and prison authorities told the court that none of the four convicts in the Nirbhaya gang rape and murder case could be hanged on the scheduled date of January 22 as one of them has moved a mercy plea.

The four convicts -- Mukesh Kumar Singh (32), Vinay Sharma (26), Akshay Kumar Singh (31) and Pawan Gupta (25) -- were to be hanged on January 22 at 7 am in Tihar jail. A Delhi court had issued their death warrants on January 7.

Delhi government standing counsel (criminal) Rahul Mehra told the court that under the prison rules, if death sentence has been awarded to more than one person in a case and if only one of them moves a mercy plea, the execution of the others too has to be postponed till the plea is decided.

"Then your rule is bad if you cannot take action till all the co-convicts have moved a mercy plea. It seems there has been non-application of mind (while framing the rules). The system is suffering from cancer," the bench shot back.

The high court also pulled up the Delhi government and prison authorities for the delay on their part in issuing a notice to the convicts informing them they can move mercy pleas before the President.

The bench said the notice ought to have been issued after the apex court's May 5, 2017 judgement, instead it was issued on October 29, 2019 and December 18, 2019.

"Put your house in order. Your house is in disarray. The problem is people will lose confidence in the system. Things are not moving in the right direction. The system is capable of being exploited and we see a stratagem to exploit the system, which is oblivious about it," the high court said.

In defence of the prison authorities, Mehra said the prison rules state that unless all the co-convicts have exercised all their legal remedies, we cannot issue the notice.

He agreed the system was being exploited by the convicts to "frustrate" and "defeat" the process of law, as they were moving review pleas and curative petitions separately and in stages.