Originally Published 2011-09-01 00:00:00 Published on Sep 01, 2011
To confuse the delay in executing the death penalty in the Rajiv Gandhi Assassination case to politically imply that the convicts were not involved in the heinous crime would not pass legal or judicial muster. It could complicate matters, but things would remain where they would.
Death penalty - for what and when?
Questions may be asked in the courts about the wisdom and propriety of the Madras High Court ordering notice to the Centre and the Tamil Nadu Government on the petitions filed by three Rajiv Gandhi killers awaiting execution of their death sentence. The three have claimed that the inordinate delay in the President (and by extension, the Centre) disposing off their mercy petitions was inhuman and amounted to cruelty, and have sought commutation of their death sentence. Another prisoner, Nalini, whose death sentence had been commuted to one of life, sought freedom on the ground of 20 years of captivity, since the assassination took place in May 1991. The courts had then refused to interfere, saying that commuted death sentence could not be done away with in between, as may be the case in others.

The Supreme Court had long ago decreed that death penalty could be imposed only in 'rarest of rare cases'. The Rajiv Gandhi assassination case belonged to the genre, the Apex Court had held when the direct appeal from the Special Court in Chennai was brought before it, by both the prosecution and the convicts alike, under the now-defunct POTA. The Special Court had sentenced all 26 accused who stood trial before it to death. The Supreme Court however did not agree with the lower court that the assassination was an 'act of terror' under POTA and confirmed the death sentence awarded to four. While Nalini, then a mother of a young daughter, escaped the noose after Sonia Gandhi intervened in due course, the Supreme Court declined to change its order when the CBI-SIT that prosecuted the case and those handed down death sentence filed review petitions under the law.

It is anybody's guess why the Centre should have taken such a long time to decide on what should have been a routine affair, in the administrative sense of the term. If there were other reasons for the Government to delay a decision on the mercy petitions, it should have communicated the reasons to the prisoners. They could then have considered the wisdom of moving the courts for a writ of mandamus or whatever legal relief might have been available to them under the circumstances.

Yet, to confuse this delay to politically imply that the convicts were not involved in the heinous crime would not pass legal or judicial muster. It could complicate matters, but things would remain where they would. Courts in this country are known not to be overly influenced by political pressures and public protests of the kind - particularly when it involves propriety and procedures.

The arguments pertaining to the delay in the execution should not also be confused with those that are totally opposed to capital punishment. After the Indira Gandhi assassination case, the present case has focussed national attention on the issue, all over again. In between, others had faced the hangman's noose. Others are similarly facing the imminent execution of their death penalty, along with the three Rajiv Gandhi assassins - Santhan, Murugan and Perarivalan - and also Afzal Guru, similarly sentenced in the 'Parliament attack case'. These are not just heinous crimes, carried out in cold-blood yet possibly under grave provocation, real and imaginary. Independent of the reasons that might be offered as justification, these are specific cases that sought to shake the very foundations of the nation's democratic existence and processes. The 'Parliament attack case' in particular was aimed at shaking the nation to its very foundations. The Rajiv Gandhi assassination, given the personality involved and coming as it did in the midst of parliamentary polls shook the nation even more. The effect of penalties, starting with death penalty, is not only to punish the guilty. It is meant even more to prevent dangerous misadventures of the kind, where dangerous minds drew up diabolic controversies, with the main motive of destabilising the Indian nation - more than anything else.

(The writer is a Senior Fellow at Observer Research Foundation)
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N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

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