TN can’t release Rajiv killers without consulting Centre, says Supreme Court

Written by Utkarsh Anand |New Delhi |Updated: December 3, 2015 12:15:13 am

The judgment is a setback to J Jayalalithaa’s government in Tamil Nadu which had in February 2014 decided to release all the seven convicts in the case. 

Blocking the release of seven convicts in the Rajiv Gandhi assassination case, the Supreme Court Wednesday said state governments cannot remit jail terms of convicts in cases of national importance without the Centre’s approval. The court blocked the J Jayalaithaa-led Tamil Nadu government’s move to free all seven convicts, and said no remission can be granted by “putting the interest of the nation in peril”. Regretting that “lawlessness is the order of the day”, the Constitution Bench held that a state government cannot be allowed to exercise its power of remission and free convicts in cases which have been investigated by central agencies such as CBI and NIA and where offences entail death penalty or conviction is for an offence relating to Executive Power of the Union. 

The bench, led by Chief Justice H L Dattu, held that cases such as the killing of a former prime minister would mean assassinating “national figures of very high status by resorting to diabolic criminal conduct” and that “such a situation should necessarily be taken as the one coming within the category of internal or external aggression”. The judgment, by a 3:2 majority, noted that granting the Centre overriding authority in cases of national importance “cannot held to be interfering with the independent existence of the state concerned”. While Justice F M I Kalifulla, the author of the verdict, and Justice P C Ghose wrote the majority judgment with the CJI, Justice Uday U Lalit and Justice Abhay M Sapre concurred with them on all issues except one legal point.

Murugan-Santhan-and-Perarivalan

The two judges differed on whether there can be a “special” category of punishment beyond 14 years in jail and if the power of the state government for remission can be curtailed. Underscoring that life imprisonment means jail term till the end of one’s natural life, the majority verdict held that there is no bar on a high court and the top court to sentence a convict to 20 or 30 years in jail without benefit of remission. Referring to the Rajiv Gandhi case, the court said: “We find no scope to apply the concept of ray of hope to come to the rescue of such hardened, heartless offenders, which if considered in their favour will only result in misplaced sympathy and again will not be in the interest of society. Therefore, we reject the said argument outright.” It also criticised the Tamil Nadu government for exercising its power of remission “suo motu”.

The bench ruled that no state can carry out this exercise suo motu and there has to be an application by the convict first. On February 18, 2014, the apex court had commuted death sentence of three convicts in the case — Murugan, Santhan and Perarivalan — due to inordinate delay by the executive in deciding their mercy plea. The next day, the Tamil Nadu government suo motu ordered the release of all seven life convicts. The Centre then rushed to the court on February 20, 2014 and got their release stayed. The bench then framed seven questions and referred it to a Constitution Bench. After Wednesday’s verdict, the case has been sent back to the three-judge bench.

Source: https://indianexpress.com/article/india/india-news-india/convicts-in-rajiv-gandhi-assassination-case-will-remain-behind-bars-sc-rules/ (Accessed on 19 December 2018)

Death penalty better than entire life in jail: SC on Rajiv Gandhi case

PTI New DelhiJuly 23, 2015 UPDATED: July 23, 2015 22:11 IST

The remarks came while hearing a petition of the Centre against Tamil Nadu government's decision to set free convicts of the Rajiv Gandhi assassination case in which the court allowed states to exercise power of remission in certain class of cases.

The award of life imprisonment with a rider that it means "remainder of life" on Thursday came under sharp attack from the Supreme Court which said that it would be better to award death penalty to such convicts . All of us live in hope, if this is the prevailing situation then there will be no hope for such convicts. What is the point in keeping a man in jail for whole life... Give him the death sentence. That will be better," a five-judge constitutional bench, headed by Chief Justice HL Dattu, said. 

Former Prime Minister Rajiv Gandhi

The remarks came while hearing a petition of the Centre against Tamil Nadu government's decision to set free convicts of the Rajiv Gandhi assassination case in which the court allowed states to exercise power of remission in certain class of cases. During the hearing, the bench asked the Centre about the rationale behind providing life imprisonment till the death. "We follow the reformatory penal system," the bench said, adding that if there is no scope of remission, then why a convict, serving life term, would try to reform himself.

Source: https://www.indiatoday.in/india/story/supreme-court-on-rajiv-gandhi-killer-death-penalty-better-than-life-imprisonment-284285-2015-07-23 (Accessed on 18 December 2018)

Yakub Memon death sentence: Ram Jethmalani defends impartiality of Indian judiciary

Updated: Jul 24, 2015, 03:15 PM IST

Senior advocate Ram Jethmalani on Friday rubbished AIMIM chief Asaduddin Owaisi's remark about 1993 Mumbai blasts convict Yakub Memon's death sentence, saying the courts are impartial."That's not correct, our courts are impartial in such matters," said Jethmalani. Owaisi had alleged that Memon is being hanged only because he belongs to a particular religion and added that death sentences of those convicted in former prime minister Rajiv Gandhi's assassination case were commuted to life imprisonment. Yakub, who is to be hanged on July 30, had last week filed a mercy petition to the Governor.

Senior Advocate Ram Jethmalani

Source: https://www.dnaindia.com/india/report-yakub-memon-death-sentence-ram-jethmalani-defends-impartiality-of-indian-judiciary-2107665 (Accessed on 18 December 2018)

Repeated Mercy Pleas Frustrate Legal Principle; Centre to SC

Published: 22nd July 2015 09:27 PM | Last Updated: 22nd July 2015 10:11 PM

Solicitor General (SG) Ranjit Kumar, appearing for the Centre, said, "Repeated filing of mercy pleas frustrate the principle of finality".

By PTI

NEW DELHI: Repeated mercy pleas before the President and the Governor by convicts seeking remission or commutation of their sentences violate the principle of finality, the Centre today told the Supreme Court. A five-judge Constitution bench headed by Chief Justice H L Dattu, hearing Centre's plea opposing Tamil Nadu's decision to remit the life sentences and set free seven convicts in the Rajiv Gandhi assassination case, also posed various queries on powers of Union and the state in granting remission. Solicitor General (SG) Ranjit Kumar, appearing for the Centre, said, "Repeated filing of mercy pleas frustrate the principle of finality". During the day-long hearing, the bench, also comprising Justices F M I Kalifulla, Pinaki Chandra Ghosh, Abhay Manohar Sapre and U U Lalit, asked as to whether a convict can approach the Governor with his mercy plea even after its rejection by the President. It sought the SG's response on the issue, wondering whether the President's auhority would be undermined, if the Governor allows a mercy plea subsequent to its rejection by the former.

Solicitor General (SG) Ranjit Kumar (file photo)

The bench, which referred to the case of Yakub Memon without naming him, asked the SG to take instruction as to whether any procedure is in place to deal with the mercy pleas or there was need to make a fresh law. The Solicitor General, on his part, said the Governor can decide the mercy plea of death row convicts even it had been by the President provided there is a "change in circumstances". He, however, added that the convict cannot be granted remission under the CrPC after constitutional authorities like the President and the Governor have rejected the mercy plea. "Do you mean to say that power once exercised stands exhausted?" the bench asked, adding, "why can't the state government can take a decision?"

The issue is as to whether the re-consideration of mercy pleas by the executive defies the legislative and constitutional scheme, the SG said. The Solicitor General also said the states cannot decide the mercy pleas of persons convicted under central laws like Foreigners Act and the Passport Act in cases probed and prosecuted by a central agency like the CBI. "Here is the dichotomy. If the conviction is under the state laws (like MCOCA), then the Governor has the power to commute the death penalty or any other penalty," he said. During the hearing, the bench referred to the new penal laws on rape and asked the SG as to why it specifies that the life term would mean "remainder of life of convict".

Referring to various apex court decisions, the SG said it had been done keeping in mind the growing number of offences against women and the fact that often states remit sentences of convicts using "legally unsound principles". The arguments remained inconclusive and the Solicitor General would resume his submissions tomorrow. Earlier, the Centre had asserted that the killers of former Prime Minister Rajiv Gandhi did nor deserve any mercy as the assassination was the result of a conspiracy involving foreign nationals. "Our former Prime Minister was killed by these people. There was a conspiracy to kill him in which foreign nationals were also involved. What mercy is to be seen or shown? This is to be looked by you (apex court). "Their mercy plea was rejected by the President and also by the Governor (of Tamil Nadu). So what mercy is being argued?" the Solicitor General had said.

Among seven convicts, V Sriharan alias Murugan, Santhan, Robert Pious and Jaya Kumar were Sri Lankan nationals while female convict Nalini, Ravichandran and Arivu are Indians. The bench is hearing the maintainability of the Centre's petition opposing Tamil Nadu government's decision to remit the life sentences and release seven convicts in Rajiv Gandhi assassination case. The issue of mercy was raised by senior advocate Ram Jethmalani, who while appearing for Murugan traced the history of judicial proceedings. Earlier, the court, on the plea of the erstwhile UPA government, had stayed Tamil Nadu's government's decision. It had framed seven questions to be decided by a Constitution bench on the scope of the executive's power of remission.

Earlier, senior advocate Ram Jethmalani and Tamil Nadu government's senior counsel Rakesh Dwivedi had questioned the maintainability of the Centre's petition, saying Article 32 cannot be invoked by the Centre as it did not concern any violation of the fundamental rights. The apex court had on February 20 last year stayed the state government's decision to release three convicts Murugan, Santhan and Arivu whose death sentence was commuted to life term by it two days before. It had later also stayed the release of four other convicts Nalini, Robert Pious, Jayakumar and Ravichandran, saying there were procedural lapses on the part of the state government. Santhan, Murugan and Arivu are currently lodged in the Central Prison, Vellore. The other four are also undergoing life sentence for their role in Gandhi's assassination on May 21, 1991 in Sriperumbudur.

"The issue of such a nature has been raised for the first time in this Court, which has wide ramification in determining the scope of application of power of remission by the executives, both the Centre and the State. "Accordingly, we refer this matter to the Constitution Bench to decide the issue pertaining to whether once power of remission under Article 72(by the President) or 161 (by Governor)or by this Court exercising Constitutional power under Article 32 is exercised, is there any scope for further consideration for remission by the executive," the apex court had said while referring the matter to the Constitution bench. It had said the Constitution bench would decide whether the sentence of a prisoner, whose death penalty has been commuted to life, can be remitted by the government.

Such a bench would also decide whether life imprisonment meant jail term for rest of the life or a convict has a right to claim remission, it had said. Another issue for the Constitution bench to decide would be whether a special category of sentence may be made for cases where death penalty might be substituted by imprisonment for life or imprisonment for a term in excess of 14 years and to put that category beyond application of remission. It will also decide whether the Union of India or the State has primacy over the subject matter enlisted in concurrent list of the Seventh Schedule of the Constitution for exercise of power of remission.

Source: http://www.newindianexpress.com/nation/2015/jul/22/Repeated-Mercy-Pleas-Frustrate-Legal-Principle-Centre-to-SC-789980.html (Accessed on 18 December 2018)

Tamil Nadu can remit Rajiv Gandhi killers' sentence only after Centre's nod

Monday, 17 November 2014 - 7:45am IST | Place: New Delhi | Agency: dna

Prabhati Nayak Mishra 

Supporting the Centre, which had approached the supreme court against the Tamil Nadu government's move to release seven convicts after granting them remission in former prime minister Rajiv Gandhi's assassination case, the Madhya Pradesh government told the apex court that the state government needs to consult the Centre when granting remission to convicts in cases probed by CBI. However, the state made its stand clear that consultation does not mean 'concurrence.'

Filing an affidavit, MP government told the top court that the Parliament has made it very clear that "the state government should seek mere opinion or advice of the Centre, if the offence has been investigated by the Delhi special police establishment or by any other agency empowered to make an investigation into an offence under any Central Act…" The CBI was created by the Centre under the Delhi Special Police Establishment Act. 

It also said: "The offence involves misappropriation or destruction of or damage to any property belonging to the Central government or was committed by a person in the service of the Central government while acting or purporting to act while discharging of his official duty."

In February, this year, the then Jayalaithaa government in Tamil Nadu had decided to grant remission to all seven convicts, including three, whose death penalty was commuted by the supreme court on grounds of delay in execution, and had given three days time to the Centre to respond to the state's decision.

Tamil Nadu's move followed the supreme court's February 18 verdict commuting the death sentences of AG Perarivalan alias Arivu, Sriharan alias Murugan and T Suthentiraraja alias Santhan on grounds of delay in execution. Murugan, Santhan and Perarivalan were awarded the death penalty in 2001 over the killing of former PM Rajiv Gandhi, who was died in a suicide bombing on May 21, 1991, at a political rally in Tamil Nadu.

Four others were given life terms in the same case. They are Sriharan's wife Nalini, B Robert Payas, S Jayakumar and P Ravichandran. Tamil Nadu claims that the state has the power to grant remission under the CrPc provision. The Centre, which was then led by the UPA government, challenged the state government's order. Keeping aside political differences, the NDA government also on Sunday maintained the UPA regime's stand in court. Tamil Nadu says that the state has powers to release the convicts. The Centre demurred, arguing that the convicts could not be released without its nod as the CBI had probed the case.

Case complications

In its referral order in April, the bench framed the issues which are whetherlife term, when commuted from death penalty, meant imprisonment for the rest of life, which could not be remitted by the appropriate government after the convicts spend a minimum 14 years in jail. The question is also that if the president grants or rejects the commutation of death penalty, could the states remit the life sentences after the prescribed minimum period. Also, there is a complication in deciding Which government, the state or Centre, has the power to remit sentences of convicts in the Rajiv assassination case.

Source: http://www.dnaindia.com/india/report-tamil-nadu-can-remit-rajiv-gandhi-killers-sentence-only-after-centre-s-nod-2035826 [last accessed 06.02.2015]

Rajiv's killers: NDA move may bring sanity to the death penalty debate

by R Jagannathan Jul 25, 2014 22:06 IST If the execution or commutation of a death sentence is not to remain a political football, it is clear that the current process is simply untenable. The NDA government has raised an important question on the issue: can the release of a convict be something that is only between him and the government? If this idea is taken to its logical conclusion, it will balance and bring sanity to the death penalty debate. According to this Times of India report, Solicitor General Ranjit Kumar this week asked the five-judge Supreme Court bench which is hearing the case for freeing the killers of Rajiv Gandhi a pointed question: “Should the relatives of those killed in the blast (that killed Rajiv and 17 others) be not permitted to challenge the Supreme Court's decision to commute the death sentences of the condemned prisoners? Would it be correct to decide the issues relating to (the) remission granted to prisoners, whose death penalty had been commuted to life imprisonment, be decided merely on an application made by the convict to the government?” 

 This is a great question, and, in fact, is the missing link in questions about the death penalty. It is also vital to reducing the element of political arbitrariness in the execution of death penalties, their commutation, et al. In 2012 and 2013, Ajmal Kasab, the Pakistani terrorist who was part of the 26/11 attacks in Mumbai, and Afzal Guru, who was convicted for the December 2011 attack on parliament, were hanged after long delays. The Congress-led UPA, which had been dithering all along, confirmed the executions – one suspects – largely to show it can be tougher than Narendra Modi, then emerging as the real challenger to the UPA. 

Kasab was executed just ahead of the Gujarat assembly elections, and Afzal Guru a few months after that – just as the BJP was seeking to make Modi the prime ministerial candidate. But then a strange thing happened. Several other convicted assassins – Santhan, Murugan and Perarivalan, all convicted for the killing of Rajiv Gandhi, and Balwant Singh Rajaona, convicted for the assassination of former Punjab CM Beant Singh – were spared the noose. And last year, the Supreme Court commuted the death sentence on Rajiv’s killers on the plea that by delaying their executions so much, an injustice was done to them and their families. It is clear why Kasab and Guru went to the gallows and why Rajaona and the Rajiv’s killers did not – the former did not have strong political backing, while the latter two had political godfathers in the Punjab and Tamil Nadu governmentswhich moved to save them from the gallows (allegedly in deference to public sentiment). And after the Supreme Court commuted the death sentences of Santhan, Murugan and Perarivalan, Tamil Nadu Chief Minister J Jayalalithaa hastily announced a decision to let them go free. This blatantly political act forced the Supreme Court to stay their release last April, and in the process new ideas are coming to the fore — as evidenced by the Solicitor-General’s posers to the Supreme Court bench, which is headed by Chief Justice RM Lodha. Thus far, those who want to abolish the death penalty have been focusing too much attention on the convicts and their families, thinking little about the families of the victims. But if death sentences and their commutation, and even the release of convicts, can be decided without any reference to the real victims — the families of those affected by the acts of killers — how can justice be said to be done? Revenge and the need for punishment of criminals is not just about the state doing its bit. It is also about bringing closure to the families of the victims as well. In the Rajiv Gandhi assassination case, it was not only Rajiv who got killed in the blast set off by LTTE suicide bomber Dhanu. Seventeen others, including policemen, were killed and scores injured. Their families have suffered. How can the law presume that the agony of a killer’s relatives is greater than that of the families of the people they killed, maimed or injured? If delay in carrying out a death sentence is agony for the former, it is doubly so for the victims. A killer freed may make his family celebrate, but can the families of the victims feel happy about this? The Solicitor-General has done well to bring parity to the process of accepting or rejecting mercy pleas. 

A formal structure to obtain the inputs of the families of the victims is vital to the process of justice. There are several good and practical reasons why victims’ kin must be brought into the picture. One, it makes for a better form of closure. If the families of the victim are willing to forgive and forget, any commutation will carry more moral weight. If not, they are merely abiding by the court’s final decision. Two, by giving the families a say, many such decisions can be taken out of the ambit of politics. In the Rajiv killers case, while politicians are seeking brownie points by pretending to feel for the convicts and their cause of Tamil Eelam, the real victims – the families of the 17 others killed – were simply left out of this empathy process. 

Now, if they agreed to the commutation and release, it would be a case of truly forgiving and forgetting. If they don’t agree, it frees the state government from having to prove to the electorate it had sympathy for the killers’ families. Three, in the Afzal Guru case, where the Kashmir sentiment was ignored because it was unimportant in the larger context of Indian politics, the government ended up shamefully hanging him and not even intimating his family in time. Now, Guru has been elevated to a big hero in the Valley. But if the victims of the Parliament attack had formally been brought into the picture, he would have been less of a hero. Guru would, in this case, not just be the victim of arbitrary justice, but paying for his sins. 

 There is a strong case for giving due weightage to the feelings of the families of victims when it comes to taking decisions about the death penalty. PS: A lot of arguments were raised on twitter, subsequent to the publication of this post, about letting the kin of victims have a say in the commutation of a death sentence or the release of convicts. I would like to clarify that I am not calling for the kin to have a say in what penalty should be awarded for a crime, but only about having a say in the post-judicial phase. I believe the kin of the victims should be consulted in case the government wants to commute a sentence. It can still take its own decision, but consulting kin would, according to me, allow the government to take their feelings into account while deciding. A forgive-and-forget attitude from the kin would help a decision in favour of clemency. I am not suggesting a veto to the kin, nor any say for them in deciding the punishment. 

Source: http://www.firstpost.com/india/rajivs-killers-nda-move-may-bring-sanity-death-penalty-debate-1634377.html [last accessed 06.02.2015]

Indian Supreme Court refuses to release 7 assassins of former PM Rajiv Gandhi

Source:Xinhua Published: 2014-4-25 16:16:12

India's Supreme Court Friday refused to release seven assassins of former Prime Minister Rajiv Gandhi from prison, and referred the case to a five-judge Constitution Bench.

A bench, headed by Chief Justice P. Sathasivam, also framed seven questions to be addressed by the Constitution Bench, including whether after commutation of the death sentence into life in jail, they can be released, and whether the central government or the Tamil Nadu government can do so.

The seven assassins are currently lodged in a jail in the southern state of Tamil Nadu and each has spent more than 20 years in prison.

In February, the Supreme Court had commuted the death sentences of three of the convicts -- Santhan, Murugan and Perarivalan -- who were on death row, citing an inordinate delay in disposing of their mercy petitions by the Indian president.

The other four assassins in the case have been serving life imprisonment.

After the apex court ruling, Tamil Nadu's Chief Minister J. Jayalalithaa had said all the seven would be released, compelling the central government to challenge the order.

"The release of the killers of a former prime minister of India and our great leader, as well as several other innocent Indians, would be contrary to all principles of justice," Indian Prime Minister Manmohan Singh had said in response to Jayalalithaa's announcement.

Rajiv Gandhi, who was India's prime minister from 1984 to 1989, was killed by Dhanu, a Sri Lankan suicide bomber from the now- defunct Tamil Tigers, during an election rally at Sriperumbudur in Tamil Nadu on May 21, 1991.

Some 26 people were convicted in the case in 1998 by a special court which sentenced all of them to death. But, in 1999, the Supreme Court confirmed the death sentences of four -- Murugan, Santhan, Perarivalan and Nalini.

However, Nalini's death sentence was commuted to life in jail, following the intervention of Rajiv Gandhi's widow and ruling Congress chief Sonia Gandhi, as she gave birth to a girl in jail.

Source: http://www.globaltimes.cn/content/856820.shtml#.U2PuGfmSwrU [accessed on 2nd May 2014]]

The Hindu : Opinion / Editorial : Halt all hangings

With only three days left for his execution, Balwant Singh Rajoana has got a temporary reprieve — ironically against his own steely determination to go to the gallows. Rajoana admitted his part in the suicide bombing of Punjab Chief Minister Beant Singh, rejected counsel, refused to cross-examine witnesses, and accepted the death penalty, arguing that he would not ask for mercy from a government that called him a terrorist but was unconscionably insensitive towards the victims of state-sponsored communal pogroms. Rajoana's stand cannot take away from the enormity of his crime, for which he has been duly and correctly convicted by a court of law. Yet, he must live if only for the state to demolish his belief that it is a “monster” ready to turn on its own people. Abolitionists around the world argue against the death penalty mainly for two reasons: it has not been proved to be a deterrent and a flawed judicial process can wrongly, and irrevocably, send a person to his death. But over and above these reasoned considerations is the sheer barbarity of taking a human life even under the due process of law. Besides, there is no humane way of executing the death sentence. Death by hanging — the preferred method in India — is unspeakably cruel.

The pain and anxiety of the death-row prisoner going to the gallows — “cutting a life short when it is in full tide” — was brilliantly captured by George Orwell in his searing 1931 essay, ‘A Hanging'. Eighty years on, India is still to abolish capital punishment even as 96 countries around the world have done away with the practice with another 34 countries observing unofficial moratoria on executions. In India, a curious pattern has emerged lately. Courts are increasingly imposing the death penalty on convicts even as pending executions are put off to avert untoward political and social consequences. Just months ago, the Tamil Nadu Assembly made a plea for presidential clemency for the three death-row convicts in the Rajiv Gandhi assassination case. Sonia Gandhi and Priyanka Vadra showed extraordinary strength of character when they pleaded for the commutation of the death sentence awarded to Nalini. Punjab under Parkash Singh Badal observed a violent bandh in response to the news that Rajoana was to be hanged — the pressure forced the Centre to stay the execution. Unfortunately, these collective pressures and the uneven response they generate have added yet another element of arbitrariness to the entire process. It has been The Hindu's consistent stand that we must do away with capital punishment. Mahatma Gandhi's India cannot afford to lag behind other countries in embracing this progressive step.

Source: http://www.thehindu.com/opinion/editorial/article3259077.ece#.T3Xbqdr-Ia8.blogger

Grey area between life and death

CHENNAI: So, legally speaking, what lies between life and death? A lot of grey area, really. Indian criminal jurisprudence does not prescribe death as punishment for a particular offence, however heinous the crime may be. For instance, the maximum punishment provided for in our statute book is not death. Instead, it is "death sentence or life imprisonment."

After holding a person guilty of having committed a heinous offence, a judge has neither legislative policy nor legal principles nor judicial precedents for guidance to impose an appropriate punishment. While highlighting this lacuna, legendary jurist Justice P N Bhagwati says whether it would be a mere life imprisonment or death sentence is decided by the judge's "unguided discretion". In other words, what qualifies as "rarest of rare cases" warranting capital punishment is to be decided on a case to case basis by the judges concerned.

The enormity of this observation would hit us if we apply it on the Rajiv Gandhi assassination case.

For some reasons, the special TADA court here found all the 26 persons guilty of committing a rarest of rare offence and imposed death sentence on all in 1996. The appeals directly went to the Supreme Court. In 1998, the Supreme Court confirmed death only for four and the remaining convicts simply walked free. In 2000 the death sentence of one of these four, Nalini Sriharan, was commuted to life after a state cabinet recommendation.

From being a part of the 26-strong death convict group, now only three are staring down the barrel.

The Amnesty International, while advocating the total abolition of death sentence throughout the world, cites three reasons to do away with the punishment. Firstly, adopting a religious attitude, it says life is a gift of God/nature, and none except God/nature has any right to take it away.

Secondly, citing economic disparity, it says a litigant's inability to afford a good lawyer has direct nexus to the quantum of punishment. The Amnesty cites the fact that about 90 per cent of convicts in various prisons in the world are underprivileged who could not pay hefty fee to a good lawyer. Thirdly, the fallibility of human judgment is a reason enough not to kill a person even by lawful procedure.

There are, however, judicial officers who feel they have been truly judicious and balanced in choosing cases to award death sentence. "In my 28 year service, nine years of which as sessions judge having power to impose capital punishment, I have not exercised the option even once. Not that I am against death punishment. I have not yet come across that 'rarest of rare case'. We are responsible people. I will not hesitate to award death penalty if acase deserves," a sessions judge told The Times of India.

He says the death penalty should remain in the statute book, to be invoked in deserving cases. "Even if it is not used even once, it will instill a sense of fear in habitual offenders and act as deterrence," he says. Incidentally, the Vellore central prison, where the three condemned prisoners involved in the Rajiv Gandhi assassination case are lodged, has a total of six death row convicts and 290 life convicts. A tell-tale evidence that extreme judicial restraint is being exercised before noose is put around a person's neck.

Source: http://timesofindia.indiatimes.com/city/chennai/Grey-area-between-life-and-death/articleshow/9805450.cms
Times of India
TNN | Aug 31, 2011, 08.10AM IST

Rajiv Gandhi assassination: HC stays execution of 3 killers

Ten days before they were to hang, three Rajiv Gandhi killers today got a reprieve from the Madras High Court which stayed their execution for eight weeks even as the

Tamil Nadu Assembly in an unprecedented unanimous resolution appealed to the President to reconsider their mercy pleas.

Stopping the execution set for September 9, a Bench comprising justices C Nagappan and M Sathayanarayanan issued notices to the Centre, the state government and the police, observing there had been a delay of over 11 years in the disposal of their petitions seeking Presidential clemency.

Murugan, Santhan and Perarivalan, lodged in Vellore Jail, were convicted and sentenced to death in the case relating to the assassination of Rajiv Gandhi during an election rally at Sriperumpudur on May 21, 1991 by an LTTE suicide bomber.

“The High Court is doing justice. Be sure. They have stayed the execution,” Ram Jethmalani, who pleaded their case, told reporters after the court's interim order.

Jethmalani, Colin Gonsalves and R Vaigai, appearing for the three convicts, contended the “inordinate and inexplicable delay” in disposing of their mercy petitions violated Article 21 of the Constitution (Protection of life and personal liberty).

Shortly before the High Court order, the Assembly unanimously adopted the resolution moved by Jayalalithaa requesting President Pratibha Patil to reconsider the mercy petitions rejected early this month.

A huge crowd outside the court cheered the interim order that was keenly awaited by leaders of several political parties and human rights groups who have launched a campaign to save the lives of the three convicts.

MDMK leader Vaiko, who has been strongly pleading for their release, was also present in court.

The delay of 11 years in deciding their mercy plea was “mental torture” for the convicts, said Jethmalani. “You make them suffer a thousand times. Is this justice?” Jethmalani asked.

In the Assembly, bowing to pressure from various political leaders, Chief Minister J Jayalalithaa moved the resolution urging the President to commute the death sentences of the three convicts.

She said the people of the state were “saddened” by the fact that the death sentence was to be executed soon.

The move by Jayalalithaa came a day after she told the Assembly that she did not have the power to annul the death sentence or put their execution on hold after the rejection of their mercy plea by the President.

“Many political parties have appealed to me to commute death sentences and in order to respect the sentiments of the people of the state, I appeal to the members of the house to pass the resolution unanimously,” she said.

The court order and the Assembly initiative were welcomed by Perarivalan's family members, present in the court.

His mother Arputhammal claimed all three condemned prisoners were innocent and should be allowed to live.

“I was in grief on whether I would get my son back. But Amma (Jayalalithaa) has passed a resolution and has given me joy. She has given me hope of bringing back my son. I am extremely happy. I don't know how to express my happiness. I am thankful to all those who worked for this,” she told reporters.

“Everyone has struggled for my son and this support should be there till my son is released,” she said before breaking down.

Perarivalan's father Kuyildasan said the stay was due to the efforts of the people and lawyers.

Welcoming the adoption of the resolution in the Assembly, he said different parties have come together to request the President to reconsider the mercy petitions.

Perarivalan's sister said she had immense faith in the judiciary. “This is only a stay. What we want is complete release.”

The three convicts were sentenced to death in 1999, along with Nalini, who is married to Murugan. After Nalini gave birth to a baby girl in jail, her death sentence was commuted to life following a request made by Sonia Gandhi.

Source:http://www.indianexpress.com/news/rajiv-gandhi-assassination-hc-stays-execution-of-3-killers/839197/

Indian Express
Posted: Tue Aug 30 2011, 11:23 hrs