Demand for pardon for Rajiv Gandhi’s killers raises several questions….

Rajiv Gandhi’s three killers have received a temporary reprieve from the Madras HC on the grounds that they have already suffered enough – not having been hanged for the last 11 years while waiting for the President of India to decide. The case is being fought by no less than Ram Jethmalani – so a strong defence should always have been expected. Considering the fact that Nalini – the fourth accused in Rajiv’s murder case – was acquitted in the year 2000, this case has also raised questions about different rules of justice for different people. It’s truly a complicated matter….

The key issues that come out of this case are:

1)      The whole issue of capital punishment:

(This part extracted from my May 30, 2011 post on the same subject)

Frankly, I think it’s a demonic act on the part of any government or country to kill someone. Even if that person is guilty of the most gory of crimes. The key point here is about whether a country has the right to take someone’s life away. And a related point is whether the tit-for-tat principle should be adopted at all in these matters. Admittedly, murder, terrorism, treason and the like are very serious offences and affect ordinary peace loving people.....but is killing them at all within the powers a government should have? There is also the question of morality here. Who is man to decide when a person’s life should be taken away? Hasn’t society given that task to God? Can man decide to assume the role of God at all? Because that’s what man does when he/she decides for or against capital punishment. By acting now.....after so many years of waiting.....the President has acted like God and ordered execution for two people. Equally, by not taking a decision on several others.....she has again acted as God. Who gave ordinary human beings the right to behave like God?

Just look at the countries actively practicing capital punishment. Based on 2010 executions, the list includes China (2000+ executions in 2010), Iran (252), North Korea (60), US (46), Saudi Arabia (27), Libya (18), Syria (17) and Bangladesh (9). Except for the US, which of these countries inspires us to be like them? Most of these countries are notorious in any case. Many of them.....Iran, North Korea, Saudi Arabia......actually allow public execution. What kind of system is this? Is China going to be the inspiration for India in this regard? Everyone knows of the opaque justice system in that country. How do we even know that those killed deserved to be killed? Now look at countries that have legally abolished capital punishment. Or have stopped capital punishment in practice even though the actual abolition is still to happen. This list includes all the liberal countries in the world. All of Europe (except tiny Belarus), Australia, NZ, almost all of Latin America, South Africa.....this is the list of countries I would like to see India in. The US is an anomaly.....but the US is an anomaly in so many things. It’s the only liberal country that allows its citizens extremely easy access to guns....which other civilized country allows this? In this one instance, I would rather avoid the example of the US rather than follow it.

One of the main reasons why capital punishment is practiced is that it is supposed to be a strong deterrent against crime. But statistics shows that if this is true at all, it is only if death is CERTAIN in all cases of conviction. In most countries that allow capital punishment, capital punishment is rarely used and hence there is very little co relationship with lower crime rates. Just look at the US. In many ways, the US is the where maximum crime happens.

India should abolish capital punishment. More so because we have had a long term historical policy of forgiveness and non-violence. Capital punishment is violent. Research shows that there is no non-violent method of inflicting death on the accused. Mahatma Gandhi preached non-violence throughout his life.....how can India then allow this form of violence to continue? Besides, we must keep in mind the infirmities and frailness of our judicial system......not everyone is convinced with the judgments pronounced by our courts. Our forensics capability is rudimentary......the grounds on which we convict people is hugely suspect. Even in cricket, there is a provision for a 3^rd umpire and the 3^rd umpire looks at irrefutable evidence before deciding. In the case of real life, let that 3^rd umpire be God.....who alone knows the real truth (apart from the author of this post!).

Life imprisonment is a strong enough sentence to be awarded in most crimes. In many ways, life imprisonment is a worse punishment than instant death. Just look at how suicide bombers are growing in numbers. What motivates them is the relatively peaceful end to their lives rather than living a life of continuous violence and hatred. Life imprisonment is as strong a deterrence as death itself is. Who wants to spend his life in the kind of jails we have in India! Of course, the flip side is that keeping a prisoner jailed for his entire life is an expensive proposition. This argument is not true in the case of India, where in any case, there are very few executions. That cost of holding prisoners is already being incurred.

2)      Power to pardon is nothing but political interference in the judicial process:

The President/PM/Monarch/Head of Church in almost all countries have the power to grant pardons. The basic premise in granting the Head of State this right appears to be that sometimes…..just sometimes….there may have been a miscarriage of justice. In such cases, there should be someone who could overturn the judiciary’s faulty decision. Historically, this power was with the Monarch of a country – and in those days clearly, the judiciary operated under the Monarch’s authority. But in today’s times, when most Constitutions of democratic countries allow for an independent judiciary, it’s a moot point if there is need to allow the Head of State the right to pardon. Most of these clemency petitions are decided on the basis of political considerations. For eg., in the US, President Gerald Ford granted a pardon to fellow Republican ex President Richard Nixon in spite of his proven involvement in the Watergate scandal. Likewise George Bush Sr granted pardon to six people of fellow Republican Ronald Reagan’s administration who were accused in the Iran-Contra scandal. The BJP accuses the Congress of not deciding on Afzal Guru’s clemency petition so as to benefit electorally from Muslim voters. The Congress counters this by examples of its own against the BJP’s six years of rule. In any case, the President is only supposed to decide basis the recommendations of the Home Ministry. So isn’t this a case of the government exercising – in a backhanded way – control over the judiciary? My recommendation: In cases of death, the SC’s word should be taken as final.

3)      How soon should the President decide on clemency cases?

Even if we do allow the President the powers of pardon, there has to be a timeframe prescribed. To the best of my knowledge, there is none right now. In April this year, the President pardoned two people who had been on death row since 1997 and 1999. What can possibly be the reason for so much delay? Are these delays intentional? Is it so that matters may “cool down” a bit, so that the President’s decision doesn’t raise many emotions? Most people don’t even remember these old cases now and in April when the President pardoned these two, there was hardly any media coverage also. My view: there should be a time limit of 2 years max for the President to decide. And the President’s decision should be independent…..not based on the recommendations of the Council of Ministers.

4)      Does a state assembly’s unanimous demand for clemency mean anything?

Pressure is often sought to be mounted on the deciding authority via the State Assembly or the Parliament. What is the relevance of this full-throttle support for clemency for Rajiv’s killers? After Karunanidhi raised this issue, did Jayalalitha really have any options but to support the demand in the state Assembly? Such pressure tactics should be criticized in media, so that such issues are not made into political games. The state assembly has no role to play in this matter and its unanimous support for Rajiv’s killers means nothing really.

The real truth is that we need to abolish capital punishment and regulate the President’s right to pardon. As the country progresses, we must move towards a more liberal zone – and be seen in the company of other liberal nations. And as we mature, we must allow our institutions to decide on matters of importance, rather than any one individual authority. In the case of clemency matters, the SC should be the final arbiter. Not the President or the council of Ministers……