Reality Check India

Pardons and remissions in Rajiv Gandhi assassination case

Posted in Uncategorized by realitycheck on February 21, 2014

The Supreme Court on Feb 18th 2014 finally put an end to the endless ping-pong between the judiciary and executive by commuting to life the capital sentence of three of the assassins convicted of killing former PM Rajiv Gandhi, 15 others, and injuring, some grievously 45 innocents.  For high quality commentary on this topic head over to Centre Right India where Amar and Aravindan have written well informed and contrasting takes on the topic.  I would like to add my bit to the discussion largely supplementing what these two commentators have written.

A most diabolical conspiracy brought to fruition

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On a searing hot night of May 1991 a devilish conspiracy was brought to bear. The above picture is an especially poignant one which I found on Shri Ajay Makens twitter profile. Regardless of my political position, I recognize the emotional devastation of losing a father in his prime that has been endured by Rahul Gandhi. The reason I use this image is to show that exactly the same impact has also been felt by the children of 15 others who were killed that night. It is easy to get carried away by the medias constant one sided sob stories of the assassins about how Jail life has been so hard on them and families. It is essential you keep this balance in mind. Those who have brought into the idea that the whole case is fabricated and these people are innocent can stop reading now.  Read about the case first and then come back and continue.

This post is also not about the desirability of the death penalty. We assume it is on the table, like it is, and the only  issues are those surrounding the administration of it.

Mitigating factor of delay in mercy petition

Google tells us that the average time spent on death row  by a criminal before being executed in the United States is 10-15 years with many going over 20 years. This includes the sensational case of Jack Alderman who was executed in 2008 after 33 years on death row. Whether this is desirable or not is a separate issue that ties into the larger abolitionist debate. Warts included we do have a grip on the vexed question of sentencing guidelines; of which murderers get picked for capital punishment and which ones get life terms. The issues surrounding the political mercy process is where the trouble lies.

The judgement of the 3-Judge bench led by Hon CJI Sathasivam quotes liberally from the criminal’s cry of anguish

Murugan: “it has been 5 years since I had sent my petition requesting Justice. I live like a moving dead body with the rope tangling in front of my eyes always in solitary confinement. I request justice but not mercy.”

..

Perarivalan: For about 8 years, I have been serving sentence as death sentence convict. So, the sufferings of my parents, brothers, wife and daughter can not be described in words. I ask God daily why they should suffer due to m..

..

They also highlighted sufferings on account of solitary confinement, mental agony, etc.

Remarkably the honorable court seems to be satisfied and moved by these letters about the mental state of the criminals. The lack of remorse and evidence of reformation in these convicts arent examined. No doubt, this is a complex issue and there are strong arguments for the so called “Death Row Phenomenon” that the court has accepted. However one wonders if a medical mental examination could prove that this state of limbo (but living) had a real medical impact on them.

The alternative opinion may be illustrated by the following game.

Say you grant a criminal on death row  a choice between two processes for a mercy petition.

Choice 1:  (Fast Track) – petition will be disposed off within 6 weeks, if delay is beyond that you live.  But you die immediately if rejected within 6 weeks.

Choice 2: (Slow Track) – petition has no time limit,  you live until it is decided, appealed, then decided again.

Which choice do you think the prisoner would take?  I think most would instantly opt for the second choice. The second choice leaves wide open the possibility that the politics of the country could, in the interim, abolish capital punishment.  So instead of the absolute mental state the relative choices have to be examined. After all, the very fact that you are in jail and not outside isnt particularly pleasant for the born free  mental state either.

Accountability, or lack thereof

A shocking part of the judgment is the following submission by the govt

a note was prepared but thereafter the file was lying in the drawer of some officer of the Ministry of Home Affairs, and, hence, could not be processed. As regards delay of 5 years and 8 months, learned Attorney General fairly admitted that this delay couldn’t be explained in any way

There is no accountability for such sloth. Furthermore there is no check to ascertain that this sloth is only due to a general malaise of incompetence or something more sinister.

Now consider the following scenario if only delay can lead to commutation in the absence of accountability. A babu or a babu in collusion with a politician now possesses the power to commute by simply ignoring a petition.  Armed with this power they can act maliciously by choosing to immediately forward petitions of persons belonging to rival  tribes while holding back those from their own tribes.  This leads to various anomalies and the storm being raised by Ms Mehbooba Mufti in Kashmir about the process for Afzal Guru is the best example of this. Of course the state will have no answer to Ms Mufti leading to erosion of trust in the residual elements of Rule of Law in India.

If these criminals are to go free due to executive delay, then those responsible for the delay must go to jail.  There is no way around this.

Jayalalithaa in the centre of the storm

Within hours of the Supreme Court judgment there was a near unanimous clamor from the Tamil media and political outfits that all those prisoners must be released. Vaiko, Periyar Dravidar Kalagam, parents of the criminals pointed to the last paragraph in the judgment that hinted at Sec  432 of the IPC (the power of the state to release prisoners).  There is no way Jayalalitha is going to agree to end up holding this boiling hot pot of overflowing goo – so she pro-actively announced intention to release all the 7 prisoners

Predictably the entire Delhi media and the Congress and BJP exploded at Jayalalithaa for her decision.

Folks seem to place a  great emphasis on Jayalalithaa’s alleged papering over procedural checks in Sec 432 and 433 of the CrPC; but reality is that for a government it is not a huge ask to fulfil these checks.  If you instead look at the substantive end of the case Jayalalithaas actions could be  justified.

1. The intensity of  activism in a model Idea of India state like Tamilnadu needs to be taken into account.

2. The court have not only commuted the sentence but also approved that the prisoners endured mental torture over 14 year delay.

3. The court did not expressly opine on the desirability of Sec 432/433 IPC ; quite the opposite hinted at the applicabilty of these provisions to the current case. This has been expertly picked up by Vaiko and a host of other parties.

4. Once there three major convicts (Murugan, Santhan, Perarivalan) are released, it  makes little sense to hold the other 4 serving life terms (Nalini, Robert Pious, Jayakumar, and Ravichandran) – so she had to let go all seven.

5. Given the above facts; the Jayalalithaa govt would be seen as nursing a personal grudge based on you-know-what in Dravidian terminology.

6. Jaya would like to have the  Central Govt to hold this pot  by invoking & interpreting Sec 435 of CrPC appropriately.

The trajectory of this case over the years is alarming and exposes the chinks in the Rule of Law and its vulnerability to activism and sectarianism. I would go a step further and say this case lends further credence to my hypothesis that the Rule of Law cannot go along with the Idea of India.  Under the guise of abolition of death penalty,  a whole set of arguments are being made to let these convicts go.  It is important to note that none of the convicts have demonstrated an iota of remorse or disowning of their ideology. Instead their capture, their trial, and incarceration are portrayed as further evidence of the oppression of Tamils in India and in Sri Lanka.

The restless eagerness of Murugan for a reunion with his daughter in London can only be understood by Rahul Gandhi who does not have that option any more.

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