Why Nirbhaya's convict can't be hanged separately? 

In 1975, 3 accused were convicted and sentenced to death in a murder case by pilibhit court and was affirmed by Allahabad High Court. C1's SLP was dismissed by the Supreme Court and he was hanged in 1981. C2's SLP was allowed partly and his death sentence was commuted to life imprisonment by Supreme Court in 1978. C3's SLP, Review was rejected and President also rejected in mercy petition. C3 challenged the president order, whereby court looking at facts and circumstances of the case asked president to reconsider his decision on the ground that

"We have seen the facts from which it is clear that no distinction at all can be made between the part played by C2 on the one hand and the C3 on the other. Since C2's death sentence was commuted by this Court, it would be unjust to confirm the death sentence imposed upon the petitioner"

This became a correctional point, as court directed that the Jail Superintendent should ascertain  personally whether  the sentence  of death  imposed  upon  any of  the co-accused  of the prisoner who was  due to  be hanged had been commuted. If it had been commuted,  the Superintendent should apprise the superior authorities  of  the  matter,  who  must take  prompt steps  for brining the same to the notice of the courts. 

The Court decided that, the Considering that  the responsibility,  involvement and complicity of  the  petitioner in  the commission  of the offence is  the same  as that  of the  other co-accused,  it would be  sheer travesty  of justice if for the same offence the petitioner had to pay the extreme penalty of death while the death  sentence imposed  on the co-accused, for the very same offence  had been commuted to one of life imprisonment.

"Had the petitioner mentioned  either in  the special  leave

petition  or  review  petition or  mercy  petition  to the

President this all important  and significant fact,  death

sentence imposed on him would have been commuted."

This became a guideline lights for the hanging ever since in all cases where more than one convicts were on the waitlist to the gallows. Delhi Prison rules inserted a note to Rule 854 which says that if sentence has passed to more than one person in same case and if the appeal to higher court or an SLP in Supreme Court is lodged by or on behalf of only one and not all of them, the execution shall be postponed for all such persons. 

However, Ministry of Home affairs has lodged a Writ Crl in Supreme Court asking for the directions that the death convicts be given 1 week to file review, and from then 1 week to file curative and from then 1 week to file mercy petition and another one week to challenge president's order on mercy petition. 

The issue of Section 39A is a  complex scrutiny and whether state should have the power to take life is empirically and philosophically debatable, delaying the process of justice makes the administrative apparatus questionable. Tom tyler a Yale psychologist and law professor argues and argues well that, people follow for they see legitimacy in the authority which enforces law. if they see administration of justice being halted they start questioning that authority for the reason of it's efficacy. There is a fine balance to be maintained between rights of convicts and people's perception in cases of such outrage. People cannot be give a perception that justice system can be take to a ride. 

Case sited : Harbans Singh Vs State of U.P 1982 SCR (3) 235

The Game of Knowledge

What Unites people? Who should rule? How should they rule? When the Lord of Westeros sat down to decide on the next king, after Jon killed Danny, they reached a consensus on Bran. Primarily persuaded by Tyrion's argument, that knowledge of the past, present as well as the intention of all the powerful actors will be a better aid for the king in building a strong and prosperous realm, they gave preference to knowledge over personality and its strength. Knowledge; nothing can stop it, no one can steal it. In Democracy though, plebs are the rulers and the role of knowledge becomes prominent as its source, nature, and use becomes pivotal in deciding the fate of the democracy. Liberal democracy, based on humanism and sacrosanct rights of an individual, explores the right of an individual to know beyond constraints. Normative limits are indeed imposed on this right, but liberal democracies, in general, do allow an individual to explore the knowledge and be critical. The advent of social media in itself has given new prominence to the place of knowledge in a political structure. The role of an individual actor has changed from being the receiver of the knowledge to the producer and distributor of the same. But the question is, does the individual actor really remains a true producer/distributor of the knowledge as the silicon valley liberals claim?

Foucault has argued that the discourses on the knowledge are produced by three procedures, external rules of acceptability, the internal mechanism of identifying truth and appropriation constraints.So according to Foucault, these procedures constrains the production of knowledge. In the general understanding of social science, the state itself is said to be one of the lead actors who has a default control over these procedures. The state establishes the producers of this discourse and controls its appearance with an end effect of controlling the discourses which produce knowledge. This constrained knowledge is then used by the plebs to make the decisions in a democracy. There seems a positive feedback loop, whereby the first state controls the knowledge and since this constrained knowledge is used in the democratic decision, it leads to domination in the democracy. Better the control over the discourse, better is the control over the democracy. Every arm of the society whether being state, market or civil society has control over the discourse of knowledge. This mechanism of control leads to domination in democracy. You cannot steal knowledge, but surely you can manipulate it.

Indian democracy has been no stranger to the control of discourse. For a long time in the Indian political structure, the government, of which the Gandhi family was a synonym had control on this discourse. All possible medium of discourse, legislature, market, civil society or press, (Respectfully excluding Ram Nath Goenka here), were knowingly or unknowingly working around the discourse set-up of one family. Generally, the post-1950s marked the trend of a positive feedback loop in the discourse ambiance of Indian politics. If we exclude the post-emergency period, when the media went into an open rebellion, the Indian discourse setup had its constraints controlled by one family. In the early Nehruvian time, Nehru's philosophical leaning around liberal socialism became the sole mechanism of identifying knowledge. The power of this constraint was such that, no alternative philosophical view reached to the people and the only epistemological test of any act or event was its consonance with socialism. While it might be disputable if Nehru intended to construct such discourse, the realm of power as understood in Foucaultian sense ensured that only socialism became an acceptable philosophical tool of analysis. The advent of Indira Gandhi marked a paradigm shift in working of the constraints as the other two constraints on discourses came to be more effective. External rule of acceptability changed from a sole acceptable philosophy to that of identity. A leader's identity became the rule of acceptability for the discourse, everything else was rejected as non-important. The discourse construction was built on either positive or negative shades of the identity, there was no choice. While in the Nehruvian era, the other two constraints seemed to be dormant, they were brought to activity in the Indira era. The internal tools of truth identification, like rules, logic, and reasoning ensured that only positive shades of leader's identity were held to be reasonable, logical and consequently relevant for discourse. Even the third constraint, which limited on who can be a speaker in discourse lead to some of the speakers being treasonous(American Agent) and hence unqualified to be a part of the discourse. Identity became the pivot on which the power of the knowledge creation was exercised by Indira Gandhi. From Rajeev Gandhi to AB Vajpayee, leaders widened the ambit of acceptability bringing the question of policy in the discourse leading to knowledge formation. However, Sonia Gandhi again harkened back to identity as a mechanism of controlling the discourse, she used this identity as a bait for the press, resulting in a manipulated discourse to project her son as a most capable leader in the country. However, they were no match for their challenger of the 2014 election.

Narender Damodardas Modi in 2013 was the first to yield the power of knowledge without being a prime minister. As soon as he was declared the prime ministerial candidate, a set of national liberal media in raze of demonizing his personality, constrained the whole discourse of the 2014 election, simply to his identity. He quickly invoked the rule of truth identification like logic and reasoning as well as judicial dicta, leading to the triumph of his positive identity in the discourse structure. He qualified the speakers on the basis of prejudice and bias to stop them from contributing to the discourse formation leading to his massive victory in 2014. Modi probably is the first non-Gandhi leader of the country to employ his identity as a medium of constraining the discourse. Further, in his tenure, he ensured that his identity is the only acceptable standard in the construction of discourse. Very interestingly, by criticizing the past prime ministers from the Gandhi family, he added the anti-family sentiment as part of his identity in his 5 years tenure. Modi was the party, Modi was the government and you could not have a political debate in the country without invoking the identity of the prime minister. He yielded great power of knowledge, the knowledge which will be used in democratic decision making, the knowledge which leads to domination in democracy.

Prime Minister's 2019 campaign was based entirely on his identity as a leader. The synthesis of knowledge before and during the election campaign becomes pivotal for the electorate in decision making. Though the construction of the discourse here should ideally be a level playing field, however, it is a continuous process and power that the Prime minister has in this knowledge formation is highly asymmetric. Rahul Gandhi's attack plan further aided the asymmetric power. Mr. Gandhi did try to change the narrative of the election with his ambitious NYAY project, but since it was unrelated to PM's identity NYAY made no contribution to election discourse. Modi has the same powers as any other Prime minister had in this country when it comes to constraining the discourse and producing the knowledge. However, by producing a discourse solely around himself(Nationalistic, strong and self-made), he constrains the knowledge and thereby its effect on the electorate. He is a master communicator and he does realize that the power effects how discourse produces truth, thus he uses this power continuously and keeping himself in the center of the debate. People today, who get critical of the media houses which side with the positive shades of the Modi are no different in the power of knowledge than the people who they criticize. Both of them aid Mr. Modi in the constraining the discourse. Power affects how discourse produces knowledge and therefore, power effects decision making in a democracy. If rightly exercised it leads to domination in democracy.

What unites us? Difficult to know

Who Should Rule? Read Aristotle

How should they rule? unconstrained discourses to make more free choices in a democracy.

Narender Modi is not a tyrant, he is better at playing the game of knowledge. He is not the problem, the problem is everyone who has played this game of constraining the knowledge.