R JagannathanFirstpost.com
If the Supreme Court decided to commute the death sentences of three convicts in the Rajiv Gandhi assassination case - Santhan, Murugan and Perarivalan - because the 11-year delay in carrying out their execution was "inordinate and unreasonable", the Tamil Nadu government reacted with extreme alacrity to announce their release. It will release not only the three on death row, but four others too - Nalini, Robert Pious, Jayakumar and Ravichandran. Seven political assassins and/or their accomplices are now going to be on the loose and will be treated as heroes by the state.
This is extremely disturbing for reasons that have nothing to do with the court's reasoning. In fact, the verdict and its aftermath show exactly how the verdict will become a political moral hazard for the country.
On the face of it, Tuesday’s verdict looks unexceptionable. The court said that "exorbitant delays in the disposal of the mercy petition renders the process of execution of death sentence arbitrary, whimsical and capricious, and therefore, inexecutable." Now, the speed with which the Tamil Nadu government has acted without even studying the verdict properly shows that its action is "arbitrary, whimsical and capricious" - exactly what the court warned against.
It is clear that the execution delay was entirely attributable to political reasons as no central government – NDA or UPA - wanted to offend the alleged sentiments of the people in Tamil Nadu. It is highly unlikely that too many people would have had any real sympathies for the people who killed a former Prime Minister, but politicians have never displayed any spine when it comes to standing up to unverifiable popular “sentiments”.
The phrase "arbitrary, whimsical and capricious" applies definitely to Indian politics - and, I dare say, to the judiciary itself occasionally, as the Supreme Court’s recent judgment on the anti-gay, anti-human rights section 377 shows. One only has to read Arun Shourie's book Courts and their Judgments to back this statement (You can download the ebook here, but please check on copyright issues).
The Supreme Court's decision in the Rajiv killers' case is questionable because it has now sanctified the “arbitrary, whimsical and capricious” behaviours of our political class.
Consider the longer-term implications of its verdict.
One, in future politicians will lead agitations to ensure that a death penalty is never executed in time so that ultimately the plea of inordinate delay can be used to subvert the verdict.
Two, in future all executions will be based largely on “arbitrary, whimsical and capricious” political decisions. As the executions of Ajmal Kasab in November 2012 (to show up Narendra Modi before the Gujarat elections) and Afzal Guru in February 2013 (to take the wind out of the BJP’s sails) showed, executions will be carried out largely for political reasons and when they are convenient to the politicians in power. How can we now escape the charge that we executed two inconvenient Muslims with low political support when one Sikh (Balwant Singh Rajoana, who killed Punjab CM Beant Singh) and three Tamil killers are spared the gallows purely for political reasons? Will executions in future be decided on the basis of how many votes an execution will cost or bring to a political party? Three, the ostensible reason for commuting the death sentence when the wait is inordinate is humanitarian. It is presumed that the death row convict would have spent a lot of time worrying about whether or not he is going to die. This reasoning is questionable. Even though there is a certain amount of mental cruelty involved, compared to the crimes for which they may have been convicted – especially political crimes for which they may have planned and plotted in cold blood – a long wait on death row is no mental cruelty at all.
In fact, this humanitarian reasoning ignores the mental cruelty inflicted on the family and friends of the victims of these killers by this long wait. Keeping the killers endlessly on death row may be bad, but what about the mental agonies of the relatives of the people who got killed? At best, only unthinking crimes of passion can probably qualify for the mental cruelty argument to save people from execution due to delays.
Four, it is specious to argue that death penalty is itself barbaric when we use it only for the “rarest of rare” crimes. But even if we assume that society should not take a life on moral grounds, then the case for reducing the life sentence to anything less than the entire life of the convict weakens. But consider what is happening in Tamil Nadu right now. Even before the ink on the Supreme Court verdict dries, politicians had begun demanding that the killers be set free. Now J Jayalalithaa's government has obliged on the basis of an “arbitrary, whimsical and capricious” political judgment before an election. Soon they will be out and we will have convicted killers being treated like heroes and writing books to make money out of it. One should ask what the families of the 17 people killed along with Rajiv Gandhi will think about this. Will they think there is justice done?
Five, as a corollary, if we are going to abolish the death penalty (we have been heading there by stealth for a while), we should simultaneously ensure that a life sentence is really a life sentence. And powers of pardon should not rest with the executive, but with the victims of those killers.
Any other decision would render the Supreme Court verdict as little more than “arbitrary, whimsical and capricious” in itself.
The writer is editor-in-chief, digital and publishing, Network18 Group
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