Nirbhaya case: Why the accused cannot be hung separately

With the Nirbhaya murder convicts filing mercy and curative petitions separately and continually, and the President and the judges having to decide on each one separately, the question has risen in the minds of many: Can't each one be hanged as and when he has exhausted all remedies? Why wait till all the accused have?

The answer is: There is a 1982 Supreme Court judgment, prompted by the discovery of gross injustice having been done to a convict, which expressly prohibits separate execution of convicts of a joint crime. In that case, one had got his punishment reduced to life term, another got a stay on his execution, and a third swung unaware of all these fluctuations of fortune faced by his fellow-convicts. To prevent such injustice happening again, the Supreme Court laid it down that all the death-sentenced convicts in a case will have to be executed together.

The case, since known as the Harbans Singh v State of UP & Others case, pertained to a multiple murder by Harbans Singh, Mohinder Singh, Kashmira Singh and Jeeta Singh. Mohinder Singh died in an "encounter" with the police. Harbans, Kashmira and Jeeta were arrested, charged, tried, and finally convicted on October 20, 1975 by the trial court in Pilibhit, Uttar Pradesh. All three were sentenced to death. A month later, the Allahabad High Court upheld the judgment.

Jeeta Singh filed a special leave petition (SLP) in the Supreme Court, which was dismissed in April 1976. Kashmira Singh filed another SLP, and that was allowed. Two years later, in April 1977, a bench of Justices P.N. Bhagwati and Fazal Ali commuted Kashmira's sentence into life imprisonment.

Harbans Singh also filed an SLP, but that was dismissed by Justices Sarkaria and Shinghal in October 1978. His review petition too was dismissed in May 1980. His petition to the President for commutation of sentence was dismissed in August 1981, and his execution was fixed for October 6, 1981. He promptly filed another petition in the Supreme Court, and the court stayed the execution.

Meanwhile, Jeeta Singh, who had tried only one SLP which had been rejected, had resigned to his fate. He did not file any review, writ or mercy petition. He was hanged on October 6, since there was no stay on his execution.

Only when Harbans Singh's petition came up for hearing did the court realise, to its shock, the gross injustice that had been done, though inadvertently. All three had been equal parties to the crime and equally guilty, but one was hanged, one got his punishment reduced to life imprisonment, and one got a stay on his execution. “It is unfortunate that Jeeta Singh could not get the benefit of the commutation of Kashmira Singh's sentence,” observed the bench of Chief Justice Y.V. Chandrachud, D.A. Desai and A.N. Sen. “Were he to approach this court like the petitioner, the sentence imposed upon him would have been commuted into life imprisonment because no distinction could have been made between his case and that of Kashmira Singh whose sentence was commuted prior to the execution of Jeeta Singh.”

Now what could be done? The court could commute Harbans' sentence also to life, but it didn't. Instead, “in the interest of comity between the powers of this court and the powers of the President of India,” the judges respectfully recommended to the President that he “may be so good as to exercise his power under Article 72 of the Constitution to commute the death sentence imposed upon the petitioner into imprisonment for life.” They did “so because the President of India has already considered the mercy petition of the petitioner once and has rejected it. We, therefore, recommend that for reasons aforesaid, which could not have been before the President of India when he rejected the mercy petition, he may commute the death sentence imposed upon the petitioner.”

Needless to say, the President obliged, and Harbans Singh lived.

Before parting with the judgment, the court directed that “prior to the actual execution of any death sentence, the jail superintendent should ascertain personally whether the sentence of death imposed upon any of the co-accused of the prisoner who is due to be hanged, has been commuted. If it has been commuted, the superintendent should apprise the superior authorities of the matter, who, in turn, must take prompt steps for bringing the matter to the notice of the court concerned.”