File photo of the convicts of Nirbhaya gang rape. Photograph:( Zee News Network )
The trial court had on January 31 stayed 'till further orders' execution of the four convicts in the case -- Mukesh (32), Pawan (25), Vinay (26) and Akshay (31), who are lodged in Tihar Jail.
"Nation's patience has been tested enough" in the Nirbhaya case due to delay tactics of the four death row convicts, the Centre told the Supreme Court Friday and said the court would have to lay down law on whether condemned prisoners can be hanged separately or not.
The Centre has challenged in the top court the February 5 order of the Delhi High Court which had dismissed its plea against the trial court's order staying the execution of the death sentence and said that all the four convicts have to be executed together and not separately.
"This is a case where ultimately this bench will have to lay down the law. Nation's patience has been tested enough now," Solicitor General Tushar Mehta told a bench comprising Justices R Banumathi, Ashok Bhushan and A S Bopanna.
The bench, which said the plea filed by the Centre and the Delhi government would be heard on February 11, did not heed to Mehta's request to issue notices to the four convicts and said it would further delay the matter.
The bench told Mehta that it would hear him on February 11 and it may consider whether notice needed to be issued to these convicts.
Mehta told the bench that one of the convicts, Mukesh Kumar Singh, has exhausted all his remedies including the mercy plea and the challenge to its rejection by the President in the apex court.
The mercy pleas of Akshay Kumar and Vinay Kumar Sharma have already been dismissed, he said, adding that the fourth convict Pawan Gupta has neither filed a curative petition nor a mercy plea.
"Pawan has chosen not to file a curative or a mercy petition. The question is, is the authority required to wait endlessly," Mehta said, adding, can a "calculated design" of one convict to delay the matter create uncertainty over the execution of other convicts.
Mehta said, in this case, there may be a situation where one convict "sits tight for five years" and the others then approach the apex court seeking commutation of the death penalty on the ground of delay in execution.
"The high court has granted them (convicts) one week time to avail all their remedies. This amply protects you," the bench said, adding, "No one can be compelled to take remedies."
While explaining the sequence of events, Mehta said the trial court had suspended the death warrants of the convicts.
To this, the bench said, "That was done as mercy petition of Vinay was pending then".
When the bench said it would hear the matter on February 11, Mehta urged the court to issue a notice to the four convicts and said, "Let them come to this court on Monday and say what they intend to do."
"Issuance of notice will not harm them. The high court had also issued notices to them. The court can have the benefit of their assistance on the issue. As an institution we are answerable to the society," he said, adding that the court can allow them to serve the copy of plea to the four convicts in jail itself.
To this, the bench said issuing notices to the convicts at this stage will further delay the matter.
"We want to hear you on merits," the bench told Mehta, who said he can argue on the merits "right now" but it would be better if convicts are represented in the court through their lawyers during the arguments.
"By the order of the high court, they (convicts) can take some steps," the bench said.
"In the impugned order, the Delhi High Court has granted one week time to the convicts to take steps if they wish to make any type of objections before any institutions/ authorities available under the law. Since one week time has been granted to the convicts which expires on February 11, list the matter on February 11 at 2 PM," the bench said.
The trial court had on January 31 stayed "till further orders" execution of the four convicts in the case -- Mukesh (32), Pawan (25), Vinay (26) and Akshay (31), who are lodged in Tihar Jail.
Later, the Centre had moved the high court against the stay on the execution of the convicts.
In its verdict rejecting the Centre's plea, the high court had faulted the authorities concerned for not taking steps for issuance of death warrants after the rejection of appeals of the convicts by the apex court in 2017.
The 23-year-old physiotherapy intern, who came to be known as 'Nirbhaya' (fearless), was gang-raped and savagely assaulted on the night of December 16, 2012, in a moving bus in South Delhi. She died of her injuries a fortnight later in a Singapore hospital.
Six people including the four convicts, Ram Singh and a juvenile -- were named as accused.
Ram Singh, the prime accused, allegedly committed suicide by hanging himself in Tihar jail days after the trial began. The juvenile, who was said to be the most brutal of the attackers, was put in a correctional home for three years.
The juvenile was released in 2015 and sent to an undisclosed location amid concerns over a threat to his life. He, when released, was 20 years old.