It is tempting to say fools rush in where angels fear to tread. But the judges of high courts are not fools. Even so, the Madras High Court did a foolhardy thing by staying the execution of three condemned persons – Santhan, Murugan and Perarivalan – in the Rajiv Gandhi assassination case. The court has compounded a problem that is already mired in politics and procrastination.
On the face of it, there seems to be good justification for staying the executions —scheduled for 9 September —by eight weeks. The three were convicted and their death penalties confirmed 11 years ago, and this fact alone establishes a strong case for clemency.
In a previous judgment, the Supreme Court has said that clemency pleas should be disposed of within three months of a death penalty being confirmed. Failing this, it would amount to mental cruelty to the condemned person and his or her relatives.
Politicians in Tamil Nadu and critics of the death penalty have now joined hands to muddy the waters. Pressured by pro-LTTE elements like Vaiko and a discredited DMK, the Tamil Nadu assembly unwisely passed a resolution on Tuesday asking the President to reconsider the mercy pleas of the convicted three.
Against this backdrop, the court’s stay will only makes things harder to resolve. The politicians will only be encouraged to play more politics with condemned men and their relatives – prolonging everybody’s agony.
To see why the court has erred, let’s consider the real issues and what is at stake.
First, the main issue right now is not about whether the death penalty is a good thing or not. It is about the failure of the executive to do its job. Both the NDA and UPA governments have been sitting on mercy petitions for years on end for lack of political courage.
After a long time, Home Minister P Chidambaram is clearing the logjam and this is the reason why dates have been fixed for the execution of Rajiv’s three convicted killers. Should the courts be interfering just when the executive has begun to do its job?
Second, the argument that it is cruelty to keep a prisoner on death row for so long is only partially valid. It may be true that the convicts suffered mentally. Their families certainly must have suffered from not knowing whether their convicted relatives (son, brother, father) would be reprieved or not.
But what about the lack of closure for the victims’ families? And here we are not talking about Rajiv Gandhi’s family alone – but those of the 17 others killed with him in that suicide-blast at Sriperambudur in 1991. Why is the agony of a killer’s relatives presumed to be greater than that of the families of the people they killed? If delay in carrying out a death sentence is agony for the former, it is doubly so for the victims.
Third, the ban-the-death-penalty-wallahs seem to wake up only when someone is actually on the threshold of a hanging. This is opportunism of a different kind. One need not doubt their sincerity, but trotting out the same old arguments against death penalty just when justice is at the point of being done is simply not on.
The time to campaign against the death penalty is when nothing is at stake. By raising the hopes of relatives and encouraging politicians to ride piggy-back on their genuine concerns, they too have become a party to prolonging the agony of the condemned. The campaign against the death penalty can – and should - be ratcheted up once the current backlog of executions is completed, so that it can be held in a less charged atmosphere.
But even here, things are not black and white. The proponents of the death penalty favour it for two reasons: one is that it serves as a deterrent. The other is that it is a form of punishment, or retribution, for a grave wrong done to someone or some people.
The opponents call capital punishment a form of “judicial murder” that is not civilised. It must be abolished in all cases. Certainly, there is some weight to this argument, too.
The middle position is that since death is awarded only in the rarest of rare cases, there is nothing wrong with the occasional death penalty. We can live with this “uncivilised” law since it is used only rarely.
A fourth idea to consider is who should be involved in the mercy petition. Currently, it is the home ministry that processes them. But what if we introduce the victims, too? What if they, too, had the power to grant clemency? Now that would be a genuinely human thing to do: forgiveness.
Sure, the families of the victims may not feel charitable or all-forgiving. But in case they do, the pressure on politicians would be less.
The Madras High Court’s unnecessary intervention in the Rajiv Gandhi killers’ execution has ensured that the death penalty will not be discussed in a calm atmosphere. The court would have been wise to pass up the opportunity to let politicians continue their dance with death.
Watch video: Madras HC stays execution of Rajiv killers
Updated Date: Aug 30, 2011 16:15 PM