Nirbhaya Rape Case: Vinay Sharma files curative petition against death sentence
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Nirbhaya Rape Case: Vinay Sharma files curative petition against death sentence

"... to eliminate systemic and political bias against the Petitioner, it is imperative that this case be reheard in open court by the señor most judges of this Honb’e Court without the damocles sword of an execution warrant [hanging] over the proceedings", the petition states.

Meera Emmanuel

Days after the issuance of a death warrant. one of the convicts in the Nirbhaya Rape case of 2012, Vinay Sharma has filed a curative petition in the Supreme Court, urging for the death penalty served on him to be reconsidered.

While questioning the correctness of the judgment that affirmed the death penalty for Sharma, the petitioner also argues that the same was prompted by the frenzied media attention on the Nirbhaya case

The death sentence upheld by the impugned judgment … was occasioned by the immense media frenzy and political pressure surrounding the case of the Petitioner, thereby creating an atmosphere of prejudice against him.”

Other grounds on which Sharma has contended that the judgment confirming his death sentence is patently erroneous and bad in law include the following.

Death Penalty jurisprudence stands "definitively changed"

Sharma has argued that the Supreme Court ought to take into consideration the changes in death penalty and sentencing jurisprudence that have taken place since his conviction and sentence.

As per the petitioner filed by Advocate Sadashiv and drawn by Advocate AP Singh, subsequent judicial pronouncements have “definitively changed the law on death sentence in India, allowing several convicts similarly placed as the petitioner to have their death sentence committed to life imprisonment."

The petitioner goes on to explain that since the judgment affirming his death sentence, “there have been as many as 17 cases involving sexual violence and murder in which various three judge benches of this Hon’ble Court have commuted the sentence of death. This corpus of case law has caused a definite change in the sentencing jurisprudence which requires that the Petitioner’s case be reheard and the law laud down in these cases be applied to the Petitioner’s case."

Why is alternative of life imprisonment without parole foreclosed?

The petitioner argues that the Court has not explained why it cannot impose a penalty of life imprisonment for the remainer of the petitioner's natural life instead of the death penalty.

"There has been no judicial response to explain as to why the alternative of life imprisonment without the possibility of parole until the exhaustion of natural life has been unquestionably foreclosed. This abdication of judicial duty to give reasons for the decision and to address the arguments advanced before the court has caused a breach of the principles of natural justice and grave prejudice to the Petitioner since it is a question of life or death."

Sharma also adds that the Court has erred in failing to consider these aspects at the stage of the review petition.

"Failure to consider the contention of the review petitioners is a violation of the principles of natural justice and a patent error of law that has resulted in a serious miscarriage of justice."

Of systemic bias and lack of deterrence in imposing the death penalty

It has been contended that the poor socio-economic background also played into the imposition of the death sentence of Sharma. Inter alia, the petitioner has also cited the 2016 report on Death Penalty prepared by the National Law University, Delhi to state that, "the death sentence as a punishment is disproportionately visited upon the poor and the marginalised."

To support his contention further, the petition also points out,

"In the Jessica Lal murder case, the convict Manu Sharma/Siddharth Vashisht was given life imprisonment and not death sentence despite it being a brutal and unprovoked murder of a defenceless woman. The convict was a very powerful person from a political family...

This inequity of outcome … highlights the fundamental divide in the criminal justice system where the poor and the weak always suffer the ‘worst punishments, even when people from other classes are guilty of offences that are barbaric and heinous. It also indicates a systemic bias against the poor which has caused prejudice against the Petitioner.."

In view of such concerns, it is the petitioner's argument that the case out to be reheard in open Court.

...to eliminate systemic and political bias against the Petitioner, it is imperative that this case be reheard in open court by the señor most judges of this Honb’e Court without the damocles sword of an execution warrant [hanging] over the proceedings.

Vinay Sharma, in his curative petition

Sharma also argues that the Court had erred in justifying the imposition of the death penalty on the ground that it has deterrent value. Inter alia, NCRB statistics have been cited to show that in 1983 there was a rise in the crime rates, despite there being as many as 10 executions across India.

Young adults less capable of ascertaining consequence of impulse-driven actions

Sharma also alludes to neurological perspectives to argue that at the time of the crime, he could not make an objective assessment of his actions given his young age. His petition states,

"There is scientific evidence to suggest that young adults are less neurologically capable of ascertaining the consequences of the impulse driven actions …

From a neurological/brain development perspective, ‘young adults’ (18-23/25) are at a similar impulse-driven stage of the development of their rain as adolescents or persons with a mental impairment, as the frontal lobe of the brain, capable of restricting impulses based on long-term moral aspirations or assessment of consequences, does not fully develop until the age of around 25."

Owing to the other circumstances involving the manner of commission of the crime, such as the inebriation of the accused, the argument and scuffle with the friend of the deceased, the argument that the accused were placed in a relatively worse position to make an objective assessment of the consequences and moral depravity of their actions.

Vinay Sharma, in his curative petition

Other mitigating factors not considered

The petition also highlights other mitigating factors, that Sharma argues the Court had not considered sufficiently before imposing the death penalty.

This includes the the lack of criminal antecedents, the socio-economic status of his family and the possibility of reformation.

The petitioner’s parents are extremely old and poor. The case has been a huge drain on their resources and now they are left almost empty handed.. If the petitioner is executed his entire family will be destroyed.

Vinay Sharma, in his curative petition

The plea comes close in the heels of a death warrant being issued by Additional Sessions Judge Satish Arora against the four convicts, who was due to be hanged to death on January 22 at 7 am.

On December 16, 2012, six men in Delhi had brutally gang-raped a young woman, later named ‘Nirbhaya’, in a moving bus. The victim succumbed to her injuries two weeks later at a hospital in Singapore. The six accused were apprehended by the police.

Of the six accused, the main accused committed suicide in Tihar jail during the course of the trial and the juvenile accused was sentenced to three years in a remand home upon conviction. The remaining four were handed a death penalty by the Additional Sessions Judge, which was subsequently affirmed by the Delhi High Court and the Supreme Court.

In July 2018, the Supreme Court dismissed review petitions filed by three of the accused i.e Mukesh, Vinay and Pawan. The fourth convict, Akshay's review petition was dismissed by the Supreme Court in December last year.

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