26TH August 2011
Commute the Death Sentence of Santhan, Murugan and Perarivalan
The People’s Union for Democratic Rights, Delhi (PUDR) is deeply distressed by the President’s rejection of the appeal for mercy for the three accused in the Rajiv Gandhi assassination case. The three accused, Santhan, Murugan and Perarivalan had been awarded the death penalty in 1997 by the TADA Court and the same was confirmed by the Supreme Court in 1999. While the crime committed is heinous, there are a number of reasons that should permit commutation of their sentence to life imprisonment.
The trial of the accused was conducted in a TADA court with all the associated biases of altered procedures and that TADA permitted. Hearing the appeal, the Supreme Court had to conclude that nothing has been established to show that the accused attempted to overawe the government or to strike terror in the people and therefore the accused were acquitted of the charges under TADA. (pa. 59, 61, 67 1999 (5) SCC 253, Nalini & ors. Vs Union of India). Yet the fact that the trial was conducted under TADA unfairly affected those accused.
TADA specifically barred appeal to the High Court. Thus the accused were denied one of the two appeals that are available to every person sentenced to death.
TADA also permitted the admissibility of confessions to the police as evidence. Normal law disallows such confessionals since these are routinely taken through torture. The conviction in the present case was crucially based on confessions by 17 of the accused which each of the accused retracted once they reached the court, alleging that these were extracted under duress. One of the accused died while in police custody. These facts should have been sufficient to prohibit the use of the 17 confessionals, but the same was not done.
The atmosphere surrounding a TADA court and the impact it has on even the judicial mind, let alone that of the opinion makers in society, weighs the scales heavily against the accused.
The Supreme Court judgement also clearly records that the accused had no intention to kill any person other than Rajiv Gandhi. The Court records that the motivation of the accused was to avenge the atrocities committed by the IPKF in Sri Lanka. Given this fact alone, there is little to fear a repeat of similar crime.
Today, when the President on the advice of the Union Cabinet has rejected the mercy appeal, there are many more reasons to be sympathetic to the mercy appeal:
1. Exemplary conduct has been exhibited by the accused during their 20 years in prison. Perarivalan completed his BCA and is pursuing the MCA course. He has helped educate many illiterate and semi-literate prisoners, has helped many in passing their Class 10, 12 and even graduate level exams, has formed a musical troupe teaching both instrumental and vocal music. Prisoners taught by him have formed a „Perarivalan Kalvi Paasarai‟ which is assisting children from poor and impoverished background to get education. Murugan passed the BCA and MCA as well as certificate courses in Radio & TV mechanics and Two wheeler engine mechanics. He is a talented painter and an exhibition of his paintings was inaugurated by the former Director General Prisons. Santhan has written numerous poems, short stories and a novel. One novel was highly acclaimed in Tamil literary circles and his poems have been published in many magazines. He also tends to the temple in the prison and conducts the daily pujas. The three prisoners have not been accused of committing any prison offence or come for any adverse notice by the prison officials in their 20 years on stay there.
2. There has been a delay of 12 years in the examining of the mercy petition. This has led to the three prisoners undergoing a sentence of life imprisonment. The orders of execution being readied today amount to a second penalty for the same crime. It has been established by the courts that delay in execution is sufficient ground for commutation. (Smt. Triveniben v. State of Gujarat, 1989 (1) SCC 678; Daya Singh v Union of India 1991 (3) SCC 61). The court has also expressed its anguish at the plight of death row convicts due to prolonged delay in deciding commutation petitions. (Sher Singh v. State of Punjab (1983) 2 SCC (Cri) 248; Jagdish v State of M.P. 2009 (2009) 9 SCC 495).
3. Today there are a large numbers of people in Tamil Nadu appealing to the government to spare the lives of these three prisoners. Given the compassion shown by society at large it is only logical that the Sovereign in a democratic order should value this sentiment.
PUDR therefore appeals to the Governor and to the Government of Tamil Nadu to show compassion in sparing the lives of the three prisoners. The killing of these three persons serves no social objective today. Sparing them would in fact protect the citizens of our country from the ill-effects of promoting of revenge as a justifiable objective.