Open Forum

New Delhi, 14 September 2011                                               

Death & Mercy Petitions

DESIST PLAYING POLITICS

By Dr.S.Saraswathi

(Former Director, ICSSR, New Delhi)

Heated debates are raging over clemency petitions and capital punishment following the President’s rejection of mercy petitions by three sentenced to death for Rajiv Gandhi’s assassination in 1991.  Unfortunately, the issue, a purely legal and human rights subject is caught in political antagonism and sub-national ethnic and linguistic emotions. 

True, one need not question the judgment declaring the three guilty of the crime and any fresh evidence in favour of the punished should be taken to courts.  However, the issue is about execution of capital punishment, abolished in nearly 100 countries and not awarded in another 35 despite being in the statute book. In others nations pardon is granted if the convict    serves the society in other ways. Pertinently, in India no execution has been carried out in nearly seven years.

Amidst the discussions, one needs to understand the term “clemency”, which means forgiveness of a crime or cancellation of punishment associated with it.  It may be in the form of pardon by either the Head of State or the highest competent authority, commuting the sentence by substituting the penalty awarded to another or remission, complete or partial, by cancelling the penalty without pardoning but holding the convict still guilty of the crime. In other words, reprieve is just postponement of execution.

Significantly, the question of pardon is always controversial. History shows that the term was used and misused as a royal prerogative in olden days.  Today, however there is a danger of the use of the power of pardon for the sake of political expediency and as a strategy in electoral politics rather than to prevent miscarriage of justice or as a humanitarian gesture.

Under Article 72 of the Constitution of India, the President has the power to grant pardon or reduce the sentence for an offence and the Governor has similar power under Article 161.  But, both these Constitutional authorities are bound by the advice of their respective Council of Ministers.  It may, therefore, be argued that the exercise of this power is subject to judicial review. 

In the Rajiv Gandhi assassination case, 23 persons were sentenced to death under TADA (Terrorist and Disruptive Activities Act) in the trial court.  On an appeal, death penalty was waived for 19 of them.  Of the remaining four, Nalini’s death sentence was commuted to life imprisonment by the Tamil Nadu Government, but not of the other three. Their mercy petitions were turned down by the President in August 2011, after 11 long years of imprisonment.

Political parties in Tamil Nadu, namely the MDMK, PMK, VCK and PT in particular are vigorously campaigning against these convicts hanging. Along-with the People’s Union of Civil Liberties the Parties argue that though the President has rejected the mercy petitions, the State Government could commute the death sentence to life imprisonment under the Indian Penal Code Sections 54 and 55(A) and Sections 432, and 433 of the Criminal Procedure Code as also Article 161 of the Constitution that empowers the State Government to do so.

Unsurprisingly, all are willy nilly building up pressure by holding protests and demonstrations and even threaten fasts and self-immolation.  The Tamil Nadu Assembly obviously under political pressure passed a unanimous resolution requesting the President to reconsider the clemency petitions taking into consideration Tamils’ sentiments and commute the death sentence to life imprisonment.  Not only this. The Chennai High Court has stayed the execution of the three convicts for two months on a writ petition filed therein.

At this juncture, the State Congress particularly its youth wing has started agitating for speedy execution of the death penalty and withdrawal of the Assembly resolution. This development clearly seems to convey that the issue is between Congress and non-Congress forces.

In addition, the debate on this issue is shrouded in certain extraneous considerations beyond the realm of crime and punishment.  Some are moved by the fact that the principal victim was a former Prime Minister with prospects of regaining that status. 

The views of   family members of those who died in the incident and of interest groups/parties are sometimes used in arguments.  In deciding the quantum of punishment or showing severity, sympathy or mercy in any case, the opinion of anyone other than the judges and advocates dealing with the case has no place and need not be ascertained at all.

The only consideration is legality and human considerations.  As the three have already spent 20 years in jail of which 11 years are after the pronouncement of death sentence and in anticipation of the D-Day and death, hanging at present amounts to double punishment for a single offence and thus is a fit case for reconsideration as a human reaction in a civilised society.  Moreover, the Supreme Court has already advised the Government in a previous case to dispose of mercy petitions within three months.

Interestingly, the US Supreme Court observed in a recent case that human beings are not chattels and should not be used as pawns in furthering some larger political or Government policy.  India has to learn to treat human beings as human beings. 

It stands to reason that what is decided in the Rajiv Gandhi assassination case is bound to have wider implications if personal grudges, political considerations and parochial sentiments are allowed to influence the arena of crime and punishment. 

Already, the Jammu and Kashmir Assembly is seized of the question of the death penalty of Afzal Guru convicted in the attack on the Parliament. Only last week the Supreme Court ruled that the presence of death penalty in the Constitution means it can be imposed in heinous and gruesome murder cases, such as honour killing, dowry death, fake encounter and hired killing.

This apart, in the ultimate, it is time to think of abolishing the death penalty altogether as an anachronism in a civilised world.  Meanwhile, the tendency to politicise and infuse regional or linguistic passions in a legal and human issue of national importance must be avoided.  What is at stake is the right of convicts to human rights and humane treatment. ---- INFA

(Copyright, India News and Feature Alliance)