Constitutionally incorrect to hang the three, says judge who confirmed death for Rajiv killers #deathpenalty

By, TNN | Feb 24, 2013

Constitutionally incorrect to hang the three, says judge who confirmed death for Rajiv killers
Justice Thomas said the judgment itself had ‘errors’ as the death sentences had not considered the antecedents, nature and character of the accused.
CHENNAI: It would be ‘constitutionally incorrect’ now to hang the three people sentenced to death in the Rajiv Gandhi assassination case, said Justice K T Thomas, who headed the Supreme Court bench that confirmed the death sentences. “It was my misfortune to have presided over that bench,” he told TOI.

More than 13 years ago, it was a three-judge bench headed by Justice Thomas that confirmed death sentence for Nalini Sriharan, Murugan, Santhan and Perarivalan. Nalini’s death penalty was commuted to imprisonment for life by Tamil Nadu governor in April 2000 on the basis of a recommendation of the state cabinet and a public appeal by Sonia Gandhi. The TADA had originally awarded death sentence to all the 26 accused persons. When the matter reached the Supreme Court, which was the only appellate forum under theRajiv Gan as a referred trial, capital punishment was confirmed only for four.

In an interview, Justice Thomas said the judgment itself had ‘errors’ as the death sentences had not considered the antecedents, nature and character of the accused. Hence any decision to hang the three could now be termed as ‘constitutionally incorrect’ and a violation of Article 21 of the Constitution, he told TOI. Going a step further, the judge said case deserved a review, considering the antecedents and character of Murugan, Santhan and Perarivalan.

“At a time when the Supreme Court bench headed by me pronounced judgments in Rajiv Gandhi assassination case, apparently, we did not consider the nature and character of the accused who were sentenced to death penalty by us. It was only many years thereafter a bench headed by Justice S B Sinha pointed out that without considering the nature and character of accused, a death sentence should never be awarded. His judgments mentioned errors in previous SC judgments and that applies to Rajiv Gandhi assassination case,” he said.

Also, he pointed out the three have been in prison for 22 years. “For any life imprisonment, every prisoner is entitled to have a right to get his case reviewed by the jail authorities (to determine) whether remission can be announced or not. Since the accused in Rajiv Gandhi case were death convicts, they underwent a long period of imprisonment without even having the benefit of life imprisonment,” he said. “This appears to be a third type of sentence, something which is unheard and constitutionally incorrect. If they are hanged today or tomorrow, they will be subjected to two penalties for one offense.”

In 1999, Justice Thomas had agreed with two others on the bench in respect of death penalty for only Murugan, Santhan and Perarivalan. As for Murugan’s wife Nalini, he gave a dissenting, but minority, verdict preferring imprisonment for life.

When TOI contacted Justice V R Krishna Iyer, former judge of the Supreme Court, he said death penalty could not be considered as a punishment. “It is just another act of murder, a judicial murder, by the state. It is high time for India to abolish death penalty and India has not gained anything from death penalties in the past,” he said.

The three death convicts have completed almost 22 years of imprisonment. Their execution, which was scheduled to be held on September 9, 2011, was stayed by the Madras high court for six weeks in August that year. The case has since been transferred to the Supreme Court, to be decided after the Devinder Pal Singh Bhullar case verdict is delivered.


#India- UPA strays off Sonia’s course #Deathpenalty

KALPANA KANNABIRAN, The Hindi feb 10, 2013

On November 20, 2012, India was one of 39 countries that voted against the U.N. General Assembly draft resolution, which called for the abolition of the death penalty. A day later, Ajmal Kasab was hanged after being pronounced guilty of perpetrating terrorist attacks on Mumbai on November 26, 2008. Afzal Guru was executed on February 9, 2013. Although there is a world of difference between the two cases, there are questions that arise in common in relation to the death penalty.

The eschewing of the death penalty is not a matter of judicial reason alone. It is not the prerogative of courts. In fact, the writ of the courts is limited. It is essentially a matter of politics. On what basis did the government vote to retain the death penalty? On what basis did the former President turn down a mercy petition? On what basis does the UPA government push for the rejection of mercy petitions by the President?

These questions have a context that we have lost sight of. Sonia Gandhi, the Chairperson of UPA, has gone on record in a letter to President Narayanan arguing strongly in favour of clemency for those convicted in the Rajiv Gandhi assassination case, and she also spoke on behalf of both her children, one of whom is now a Member of Parliament representing the Congress Party, and an acknowledged leader. The pain and loss was deeply personal. But it was also political. It concerned the assassination of a former Prime Minister and leader of the Opposition. In taking this principled stand, Sonia Gandhi was also putting the practice of politics and the public good above the personal loss she and her children suffered. In doing this, she drew a radical convergence between the personal and the political that should have become the guiding principle for the entire Indian parliament’s political stand on the death penalty. In what is a deep and unexplainable contradiction, the government led by her party has undermined her own stand on this matter. Was there a discussion? What is the justification for this contradiction?

The loss of memory of deliberative politics has tragic consequences in our time. Memory is not honoured or kept alive by taking life “lawfully” (or “justly” even if unlawfully). There is no justice in the death penalty. We need today, more than ever, to remember that there is an irreversible principle Sonia Gandhi and her children established in the matter of the death penalty — a principle that separates personal anger and grief from the idea of justice. It is this principle that should guide parliamentary and governmental deliberations on the death penalty — and indeed also guide presidential deliberations on clemency, thereby setting new measures for the practice of politics — and indeed governance in India. Its repeated negation in letter and spirit is a very worrying sign of our times.

(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad.)



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