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Updated: September 1, 2011 02:32 IST

Rajiv case outcome will settle fate of India’s 18 'dead men walking'

    J. Venkatesan
    Vinay Kumar
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Members of various Tamil organisations protesting against the death sentence given to the three convicts in the Rajiv Gandhi assassination case in Chennai on Tuesday.
PTI Members of various Tamil organisations protesting against the death sentence given to the three convicts in the Rajiv Gandhi assassination case in Chennai on Tuesday.

With as many as 18 clemency petitions filed by death-row convicts or their family members still pending consideration with the Government — some for years on end — the eventual fate of the petition filed by the three condemned men awaiting execution in the Rajiv Gandhi case is bound to have an impact on other prisoners awaiting the gallows across India.

In a plea admitted by the Madras High Court on Wednesday, Perarivalan, Santhan and Murugan said that the eleven years the government took to process and reject their mercy petition made the execution of their death sentence unduly harsh and excessive. Rajiv Gandhi was assassinated in 1991 and the trio, who were convicted of being part of the larger conspiracy, have already been incarcerated for 20 years, mostly in solitary confinement.

The last execution in India was carried out in Kolkata in August 2004, when Dhananjoy Chatterjee was hanged for raping and killing a schoolgirl. Since then, there has been no execution of convicts who have been awarded the death penalty.

According to information furnished by the Minister of State for Home, Mullappally Ramachandran, in the Lok Sabha on August 16, 18 mercy petition cases of death convicts are pending. Though “the power under Article 72 of the Constitution does not contain any limitation as to the time in which the power conferred might be exercised,” the minister asserted that, “As per the orders of the Supreme Court, the cases of mercy petitions are processed expeditiously in consultation with the governments/departments concerned for a final decision of the President of India, under Article 72 of the Constitution.”

The facts, however, speak otherwise.

Mercy petitions are usually filed soon after the Supreme Court rejects the petitions seeking review of the judgment convicting and sentencing the accused to death. Right after the mercy petition is filed, the

President’s office forwards it to the Union Home Ministry for advice by the Council of Ministers. Invariably, delay takes place in the government forwarding its advice to the President. Thereafter, the President decides on the mercy petition based on the government’s advice. Lengthy delays occur there too.

In the case of the three convicts in the Rajiv case, the mercy petitions were sent to the President soon after the review petitions were dismissed in October 1999. It took about five years for the government to convey its decision to the President to reject the mercy plea and six years for the President to accept the advice and pass appropriate orders.

Recently the Home Ministry has asked the President to reject the mercy petition of Afzal Guru, sentenced to death in the Parliament attack case of December 2001. In reply to information sought under the RTI Act by Subhash Chandra Agarwal, the President’s Secretariat said the oldest petition pending with them was from 2005, while six mercy petitions were submitted to her office in 2011 alone.

The petition of Sushil Murmu from Jharkhand, who was convicted of killing a nine-year-old child for a religious ritual, has been pending since 2005. Another case is of Jafar Ali, who is facing the death penalty for murdering his wife and daughters. He applied for the President’s mercy August 21, 2006.

Meanwhile, the RTI reply also said that the President had commuted the death sentences of 10 convicts to life imprisonment following mercy petitions. In 2009 alone, death sentences of seven convicts had been commuted to life imprisonment.

In May, President Patil rejected the mercy plea of Mahendranath Das alias Govinda Das who had severed the head of 68-year-old Harakanta Das, secretary of the Guwahati Truck Drivers Association, in 1996. He was sentenced to death by a sessions court in 1997. Another mercy plea rejected by the President was that of Devinder Pal Singh Bhullar, who has been given the death penalty in a 1993 car bombing case in New Delhi.

During his tenure, President A.P.J. Abdul Kalam decided only two mercy petitions. In 2004, he rejected the plea of Dhananjoy Chatterjee, and in 2006 he commuted convict Kheraj Ram’s death penalty to life imprisonment. President K.R. Narayanan did not clear any mercy petition.

In 2009, the Supreme Court judgment in Jagdish vs State of Madhya Pradesh asked the Centre to decide the mercy petitions expeditiously, preferably within three months. It said the condemned prisoner and his suffering relatives have a very pertinent right in insisting that a decision in the matter be taken within a reasonable time, failing which the power should be exercised in favour of the prisoner and the sentence should be commuted into one of life imprisonment.

A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice, the court said.

In July this year, the Supreme Court issued notice to the Centre on a plea by Devinder Pal Singh Bhullar to explain the inordinate delay of several years in deciding the mercy petitions of convicts after the Supreme Court had pronounced its final verdict. The petitioner said, “The power is not merely a privilege but a matter of performance of official duty. The power has to be exercised not only for the benefit of the convict, but also for the welfare of the people who may insist for the performance of the duty and therefore the discretion has to be exercised on public considerations alone.”. The matter is still pending as the Centre is yet to file its reply. However, days after Bhullar filed his petition, his mercy plea — which had been hanging fire for years — was speedily processed and rejected by the Home Ministry and President.

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