Advocate Seema Kushwaha
Advocate Seema Kushwaha

No aggression in executing death penalty in India: Counsel for Nirbhaya's parents, Advocate Seema Kushwaha

Shruti Mahajan

On March 20, India woke up to news that the convicts in the Nirbhaya case were hanged to death, mere hours after the Supreme Court refused to entertain a last ditch attempt to stay their execution.

This was the first time in independent India that four convicts were being hanged at the same time in Delhi's Tihar Jail.

While the hanging of Mukesh, Vinay, Pawan, and Akshay brought a sense of closure to many Indians - more than seven years after the brutal gang rape that took place in 2012 - it also once again brought up the debate on the death penalty in India.

For one, Advocate Seema Kushwaha, Counsel for Nirbhaya's parents, believes that there is no aggression in the execution of the death penalty in India.

One day after the execution of the death warrant against the four convicts, Kushwaha, in a conversation with Bar and Bench, said that if the death penalty awarded to convicts in the rarest of the rare cases is executed in a time-bound manner, it would serve as a deterrent against heinous crimes.

"There is no aggression when it comes to execution of death penalty."
Advocate Seema Kushwaha tells Bar and Bench

This was the first execution in relation to a case of heinous sexual crime since 2004, when Dhananjay Chatterjee was executed, Kushwaha recounts.

She says that in 2014, as many as 15 death penalty awards were commuted to life sentences by the Supreme Court, owing to a delay on the part of the government in deciding on the mercy pleas.

The landmark judgment of the Supreme Court in the Shatrughan Chauhan case laid down guidelines for capital punishment cases and highlighted the fundamental rights of death row prisoners as under Article 21 of the Constitution.

This judgment served as a precedent for various other cases where capital punishment of a convict was commutted to a life term owing to a delay in execution. The long delay, the Court had said, has a dehumanising effect for the convicts.

This exposes a lacuna in the way the system functions, Kushwaha opined. She added that the plea of delay for commutation can now be taken by the convicts because of the fault on the part of the criminal justice system.

"If a death sentence comes to be commuted in heinous crimes, there will be no justice for the victim."
Advocate Seema Kushwaha

"The State was negligent"

Kushwaha recalls that it was in December 2018 that she, on behalf of the victim's parents, moved the trial court seeking issuance of a death warrant against the four convicts.

She recounts that when she met with the Public Prosecutor for the purpose of filing the plea, she was told that the death warrant was premature, given that the convicts' rights for mercy plea and other remedies were yet to be exercised.

Time Taken/ Crime to Supreme Court: ~ 4 Years and 6 months
Time Taken/ Crime to Supreme Court: ~ 4 Years and 6 months

She, however, pointed out the law prescribed under Sections 413 and 414 of the Code of Criminal Procedure (CrPC) to the PP, following which the application was forwarded. On December 13, 2018, the plea for death warrant was filed, Kushwaha said.

Kushwaha says that as per the procedure prescribed in the CrPC, once the death penalty is affirmed by the High Court, it is the responsibility of the jail authorities - in this case the Tihar Jail authorities - to make the death row convicts aware of their right to file a mercy plea within a period of seven days. The same was not done after the judgment of the Delhi High Court, she claims.

The procedure remains the same for even after the death penalty is confirmed by the Apex Court, Kushwaha says. Even after this verdict, the Tihar Jail authorities did not inform the convicts of their legal remedies. The convicts thereafter began filing their review petitions one by one, which led to a delay in the process, she explains.

"It was the State's negligence, in a way... If they had acted in time according to the prescribed law, then the convicts would have been time-bound to exercise their legal remedies."
Advocate Seema Kushwaha
Supreme Court to President to Supreme Court (All in 2020).
Supreme Court to President to Supreme Court (All in 2020).

"Satisfied that I could help bringing complete justice for Nirbhaya"

Kushwaha says that when the horrendous crime took place in December 2012, she was moved by the incident. Apart from participating in the protests at India Gate that followed thereafter, she also tracked the trial in the case on a personal level. She remained in touch with the victim's parents.

It was after the decision of the Delhi High Court upholding capital punishment for the convicts, that Kushwaha got actively involved in the case as a private counsel, she tells Bar and Bench.

When the Special Leave Petitions by the convicts were filed before the Supreme Court, Kushwaha started to take the initiative from her end to try to get the matter listed for hearing, given that it remained pending for a long time.

"It took months for the matter to get listed before the Supreme Court because the listing in the Supreme Court is normally based on the date of first filing... I then moved a plea before the Court seeking listing of the case given that it was a fast track Court matter and should not have remained pending for so long."
Advocate Seema Kushwaha

Kushwaha reveals that since this was her first case, one in which she has been involved as a counsel since 2014, she is happy and satisfied that she could help in bringing complete justice to the victim and her family.

"We could not save Nirbhaya, but at least we could bring complete justice for her... and that is why I am satisfied."
Advocate Seema Kushwaha

"Want to use the legal profession also as a means for social service"

Kushwaha, who overcame various personal struggles to procure an education in law, says that her work for the cause of women empowerment is not over.

Coming from a small village in the Chambal district of Uttar Pradesh, Kushwaha says that her journey from her village to Kanpur and subsequently to Delhi was laced with financial and societal constraints. However, she resolved to complete her education and ultimately earned herself a law degree.

Coming from a small village in the Chambal district of Uttar Pradesh, Kushwaha says that her journey from her village to Kanpur and subsequently to Delhi was laced with financial and societal constraints.

Initially aiming to clear either the UPSC or Civil Judge exams, Kushwaha says that she now believes she can use her legal acumen to help fight for the cause of bringing justice to those various "Nirbhayas" who did not get justice.

Kushwaha believes that there is a need for a progressive approach in amending our laws in order to prevent heinous crimes against women. Apart from having awareness campaigns for women's rights, it needs to be ensure that the debates and discussions around the issue have an actual impact, particularly in the rural areas, Kushwaha opines.

Kushwaha says that there would be no requirement to award a punishment as grave as death if there are no crimes as heinous as the one committed on December 16, 2012.

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