Procrastination on mercy petitions is inhumane to death-convicts.
An inordinate delay of 11 years occurred in considering the mercy pleas of the three death-convicts in the Rajiv Gandhi assassination case, Murugan, Santhan and Perarivalan, with their pleas being ultimately rejected on August 11, 2011 by the President of India. This is only one instance of the inhuman, unconscionable and arbitrary manner in which mercy pleas of convicts condemned to death are kept pending by the government for years on end.
Simultaneous with the rejection of the pleas of these three convicts, the Home Ministry has recommended to the President to reject the mercy plea of Afzal Guru. He was sentenced to death by the Supreme Court on August 5, 2005 and the government has not taken a decision on his clemency petition for six years now.
These are some of the prominent cases among pending mercy petitions, but not the only ones. Eighteen mercy pleas are pending with the President as on August 16, 2011, the earliest among them dating back to 2005. The government seems to be totally indifferent to the pathetic plight of such convicts who are kept in suspense for many years. Courts in all civilised states, including India's Supreme Court, have recognised that any prolonged delay in executing a death sentence can make the punishment, when it comes, inhuman and degrading. The trauma and psychological stress, coupled with solitary confinement, creating a conflict known as the “death row phenomenon,” in themselves amount to a cruel punishment. The prolonged anguish of alternating between hope and despair, the agony of uncertainty and the consequence of such suffering on the mental, emotional and physical integrity and health of not only the convict but also his family members should never be allowed in a civilised society.
In a leading case from Jamaica decided by the Privy Council in 1993, the court said: “There is an instinctive revulsion against the prospect of hanging a man after he had been under sentence of death for many years. What gives rise to this revulsion? The answer can only be our humanity. We regard it as inhuman to keep a man facing the agony of execution for a long extended period of time. To execute these men now after holding them in custody in agony of suspense of so many years would be inhuman punishment.”
In 1983, the Supreme Court of India observed that a self-imposed rule should be followed by the executive authorities that every such petition should be disposed of within a period of three months from the date it is received. In other cases, the Supreme Court has commuted the death sentence to life imprisonment because of the unconscionable delay and suspense involved for the convict. As recently as on September 18, 2009, the Supreme Court specifically reminded the government of its obligations with regard to the 26 mercy petitions that were then pending with the President. The Government of India has been not only oblivious of the inhuman aspect of the procrastination but has disregarded the repeated directions of the Supreme Court.
The case of Afzal Guru has been a gross instance of political considerations coming in the way of deciding a mercy plea. Afzal Guru has been a political pawn, with the Bharatiya Janata Party in an unseemly manner demanding his immediate execution and making it an election issue. Meanwhile, for political considerations the government has delayed taking a decision, giving flimsy grounds such as that the file was not returned by the Delhi Government for four years.
As a matter of fact, it was revealed by the Delhi Chief Minister that the previous Home Minister had deliberately instructed the Delhi Government not to take action promptly on Afzal Guru's file. Afzal Guru's mental agony can be seen from a pathetic statement he made in June 2010. He said: “I really wish L.K. Advani becomes the next Prime Minister as he is the only one who can take a decision and hang me. At least my pain and daily suffering will ease then.” On the United Progressive Alliance government's ambivalent attitude, he said: “I don't think the UPA government can reach a decision. The Congress party has two mouths and is playing a double game.” Whatever his crime, surely Afzal Guru does not deserve this agony.
On September 30, 2009, Home Minister P. Chidambaram said he would consider afresh the cases of the 26 convicts awaiting the death sentence whose mercy petitions had been lying with the President for several years. He said the Home Ministry would examine each case turn by turn — as if deciding petitions submitted to the President was an act of grace or mercy.
It is a fallacy to believe that the power of granting pardon given to the President and the Governor under the Constitution is an act of grace or mercy. The power conferred on the President and the Governor is a part of India's constitutional scheme and is an integral part of the criminal justice system in the public interest. The convict has a constitutional right to have his or her petition considered by the President or the Governor on relevant grounds, including miscarriage of justice. And it should be decided expeditiously. To use the felicitous words of a U.S. Supreme Court judge: “When granted the pardoning power is the determination of the ultimate authority that public welfare would be better served by inflicting less punishment than what the judgment has fixed.”
It appears that the Home Ministry has now fast-tracked death penalty cases because of petitions filed in courts. On June 12, 2011, the Gauhati High Court issued notice for the delay of 12 years in the case of Mahendra Nath Das. In July this year, the Supreme Court issued notice to the government in the case of Devender Singh Bhullar, forcing it to speed up the rejection of his mercy petition. On July 8, 2011, in a Public Interest Litigation petition moved by a non-governmental organisation against the government's inhuman and arbitrary practice of keeping such petitions pending, the Supreme Court issued notice to the government.
It is time the entire system of disposal of the so-called mercy petitions was set right once and for all by an authoritative pronouncement and correction by the Supreme Court. Individual cases such as those of the convicts in the Rajiv Gandhi assassination case that are now in court would raise the larger question of the working of the pardoning system by the government, and why cases of the other convicts on death row who are kept in similar suspense should not be simultaneously considered. This can only be done if the present system is examined and corrected by the Supreme Court for the benefit of all mercy plea petitioners.
(The writer is a senior advocate of the Supreme Court, and former Solicitor General of India and Advocate-General of Maharashtra.)
Keywords: Rajiv Gandhi assasination, LTTE, death Sentence, mercy petition, clemency plea, Afzal Guru
I am no great fan of The Hindu. In my opinion, it is one of the most conservative newspapers. That opinion does not stop me from saluting The Hindu's editorial campaign against capital punishment. Thank you and carry on.
M S S Pandian
Centre for Historical Studies,
jawaharlal Nehru University, New Delhi 110067.
The delay of 11 years is obnoxious.The constitution should be amended suitably fixing a time limit of three months to dispose mercy petitions till such time the death penalty is abolished.
Do you all know how many bodies where taken dead in Rajiv bomb blast....So if mercy is the solution then no body will afraid in commiting a crime.....
Will the same opinion of the author hold good ,for the crime committed by Ajmal kasab ??
Procrastination is our national character.We want to delay any decision as long as possible.It arises in our psyche because of low self esteem and lack of self-confidence. In individual and collective life we Indians don't take any firm decision. We believed too much in luck so pray to God please solve this problem I will offer so and so gift. You want proof of my observation? Just read or watch how much public gathering daily on Lalbaug Ganesha temple in Mumbai and offering him million of rupees for solving their problems. As we behave in personal life same way our government behave in national affairs.
I think the author is having a soft corner for criminals awarded death penalty. Those criminals wont be in that position unless they do some crime in a brutal way. What you are saying is it is very inhuman to delay a death petition but is it human to brutally murder someone or rape a 8-10 year old girl. You say that these people undergo a large amount of psychological stress but what about the victims who have survived and their parents and relatives. This will be inhuman if an innocent person is charged with death penalty but with these hardcore criminals they should suffer all the pain for the crimes they have done.
I don't get the brouhaha about delay in capital punishment. If there is any case involving careful deliberation, it has to be one where more lives are at stake. (Since you can not undo a death sentence once done.
Now that the country has borne the whole cost of the full process(and convicts exhausted all options), it is not fair to add more costs to this case by keeping the convicts instead of hanging them.
I fully endorse the comments made by Mr. Anis Aslam of Dubai. The facts of the case should be clearly seen.
As long as India do not abolish the Capital Punishment, the imposing of them shall continue. The fact that the justice delayed is justice denied. The clemency petitions shall not be procrastinated for years together for want of political mileages. Either granting mercy or rejecting shall be decided swiftly, since it is question of life and death and hope and despair for the convicted. The Apex Court's directive to decide such petitions with in three months shall be followed scrupulously. The Tamilanadu Assembly's resolution is preposterous.
It is a shame for delaying executing court order whoever is/was and whatever ulterior motive behind the delay. It is worse than this that a State assembly involving recommending against the capital punishment ONLY for these three just because they happen to be tamil speaking. They should realise that there are scores of tamil speaking persons through the world and if they happen to kill other Indians TAMIL NADU govt act in the same fashion. IF SO other states should follow this BAD example. Now J&K Govt rightly following. Some think of humanitarian aspect. This attitude will go away once their kith and kin or close friends are affected. They shout the other way. When the relatives of victims have suffered why not execute the culprits as per the decision of the highest country's court irespective of Sex/language they speak/nation. CULPRITS are CULPRITS.
completely agree with Anis Aslam's comment. I always wonder why we talk only about human rights of criminals and not of the victims. You kill 10 people, destroy families and at the end you will get a mercy relief because you are human! then why at all manufacture weapons. why kill soldiers of other country in a war. Are they all not human as well? Human rights of criminals can be considered in an ideal world where everybody's rights are cared. You can't care for millions of people dying of hunger and poverty and a killer's human right is suddenly so important for a civilized and human society! how hipocritic that is! And on the other hand what signal you are sending to criminals...even after killing the PM you can live. the protest should be that all such criminals whose crime is established without any doubt specially in case of treason and anti national activities should be hanged within a month of decision. or someone will again hijack a plane to set them free.(remember Kandahar hijack)
Dear Sir: Supreme Court of India has denied the pleas of the convicts. They then appealed to the President of India who also denied their appeals. NOW, the Madras High Court steps in delaying everything. I am NOT for hanging; but will someone please explain, how a high court can throw a curve ball and delay things ? Does it have higher authority than the Supreme Court of India ? I am really not able to understand this procedure.
Its not about who has been killed? It's about can somebody claim the right to kill anyone at will...and still escape on humanitarian grounds...Letting someone kill and escape is of course not a hallmark of any civilized society either..This includes all kinds of cases where killing is involved specially in cases of rarest of rare crime, To mention..cases of Rape and cold blooded murder(E.g Jyoti kumari chaudhary;;Naina Pujari and many others).. Delaying of process cannot be considered as an excuse to escape death sentence..its a right and privilege given to all citizens to prove there innocence..and procedure will take due time...If at all anything is to be criticized and pointed fingers at it should be the time taken to give judgement..I am sure no person on this earth would ever want to let go a person who have murdered his or her wife, son , daughter..for any other lesser punishment even those who are opposing death sentence...It will send out a wrong message to antisocials
Mercy petitions have become a misnomer for mercy. Unfortunately,procrastination becomes the order of the Executive. The writer is all correct in trying to exhort the Apex Court,which is the only glimmer of hope. The sooner it is done,the sooner will be the sanctity of the office of the President of India is protected.
Man has no right to take anothers' life under any circumstances. If we do so we are not different to a killer. We only have the right to restrain/punnish the convict. Infact we have a responsibility to reform the convict in a civilised society.
I am shocked by the vitriol here in favor of the murderers, and for the Hindu to highlight their cause!! I strongly encourage the editor to spend 30 minutes with a few of the families of the other victims that were collateral damages in the incident - how they have adapted to losing a father, brother, mother, sister, parent and a bread-winner in the family. And then you can preach to me how sorry we should feel for the murderers.
Only timely execution is the most humane punishment for the brutal and inhumane crimes committed by the criminals. These criminals have taken advantage of the gaps in the securities which is one form of incompetency of the authorities. Now the same incompetency in taking a decision regarding their plea is haunting them. While thinking in humane way about these criminals one must not forget the daily lives, as good as death, of the dependents of the victims or the victims themselves. A man committed a heinous crime as rape and got released after mere seven years to live a 'life with dignity' but the victim (Aruna Shanbhagh) is still forced to live in permanently vegetative state as good as death for nearly 43 years. Kasab has no repentance. On what ground such criminals deserve mercy? They were fully aware of the acts they are going to do and the consequences. Let them feel what the victims of such crimes are facing daily. Only timely execution can be what the most humane for them.
Why mercy on the first place for the organized killers? The principles of natural justice have been very well extended to these persons to defend themselves in the court of law as per the provisions of our constitution and the apex court established their act of guilt. Now interpretations are flying around with just one factor viz., the clemency by President. The very fact that the person who is vested with that supreme authority hestitates to extend this benefit for these guys for such a longer period clearly establishes that these guys do not deserve clemency for the heinous crime they have committed. No need for any public debate thro our media. Let the Government ignore such distortions to maintain public order and give their response to the High Court in order to execute these guys first and later work on the constitutional amendment for keeping a time frame for the grant of clemency. Expiry of this time frame must be construed that their mercy petition is rejected.
I feel the article is very biased not projecting the entire truth. 1.Two out of the three are not Indian Nationals - they waged war against INDIA, the other traitor's assisted them. 2.It was not the President of INDIA who kept it pending so long, it was the Home Ministry. 3.Excecuting a rule of land is not performed by taking into consideration regional or language sentiments. 4.Inhumane! what do you say about the families who lost their loved ones forever,why dont you mention their sufferings, trauma and life long loss. 5.Country lost a brilliant leader just becuase in his term the INDIAN parliment passed a solution to send IPKF to srilanka? Dear fellow countrymen and writer please open your your eyes to some facts before reacting.
This only proves the inefficiency and indiscipline of the Government. A country where Ministers have no respect for time (the delays they cause in keeping appointments) shows the gross indiscipline amongst these so called 'learned' lawmakers.To improve this state of affairs, all those who are late for any appointment should be made liable to punishment for this indiscipline.The amount of time lost in this country due to such gross indiscipline is enormous. Can we not put an end to it?
The timing of the rejection of mercy petition is for political reasons. Moreover the Jain commission also directed that further investigation was necessary, but this was not followed up. Some political big wigs Jain commission directed to be investigated are now trying to expedite the hangings and this gives rise to further suspicions.
A great article that deeply touched my heart. I take my hat off to you, sir.
I am not at all concerned about the rights of criminals and terrorists but prolonged judicial process and inordinate delays in deciding mercy petitions is a real torture and grave injustice for the families of the victims. Till the time death penalty is there in our country, the judicial process should be swift. Justice delayed is justice denied. Secondly, cases of criminal act must be decided in accordance with provisions of law and not through public opinion. Tamil Nadu assembly has really set a bad precedent and showed itself in poor light in rest of the country. It just gives a wrong signal that for petty political gains (which themselves are doubtful), we are ready to forget death of a former PM and eleven other policemen who were killed. Law of the land must prevail in all such cases.
Government should consider seriously about abolishing death penalty.If they take years to decide on the mercy petitions of the accused,this is merely a joke. The Government does not have the will to think about the problem. If a person is in jail for more than 20 years and his mercy petition is sent to the President for accepting or rejecting the petition. The Government's answer is THERE IS NO TIME LIMIT. The inordinate delay on the part of authorities, would give a chance to other states, viz. Punjab for Bhullar, Kashmir to the terrorist who bombed Indian Parliament. What about Kasab, he may also claim innocence.
Thank you Mr. T. R. Andhyarujina for this excellent and informative article. On 31 August 2011 The Hindu published an essay “A Hanging” written by George Orwell and 164 readers of The Hindu sent their comments. George Orwell describes and narrates the hanging of a convict in a masterly manner. I read the essay twice. The destiny of the convict touched me, he shouted “Ram, Ram,Ram”... he was full of despair and anxiety. At the end the execution was carried out and everyone who read the essay was confronted with the inhumanity of capital punishment.
All avid readers of The Hindu shall thank Mr. N. Ram, and The Hindu for The Hindu's consistent stand for decades that India must make a clean break with a savage tradition by abolishing capital punishment. An inordinate delay of 11 years occurred in considering the mercy pleas of the three death-convicts in the Rajiv Gandhi assassination case, Murugan, Santhan and Perarivalan, with their pleas being ultimately rejected on August 11, 2011 by the President of India. The three convicts have been in jail for nearly twenty years and since then they have been living with the uncertainty to be executed or not. There is no doubt the monstrous crime, months in its planning and cold-blooded in its execution, deserves the harshest civilised punishment. But it shall go without saying that the harshest civilised punishment shall be a lifelong imprisonment and after twenty years in solitary imprisonment a possibility of remission shall be possible.
The three convicts are traumatised and suffer from psychological disorders. The planned executions shall be stopped. A stable democracy like India shall abolish capital punishment.
By trying to show your democracy and so called correct procedures. your courts take years to settle a case.This then is followed by appeals to the Supreme Court,failing which an appeal to the president.The case of Kasab the pakistani terrorist is an example.Take a look at china. Cases like this will decided within two months.There is no appeal allowed and the guilty party is shot dead within days.Your nation's problem is your abuse and misuse of your democracy.
What really is the need of the hour is establishment of a time frame within which the mercy petitions are to be disposed. It definitely is inhuman to delay the death sentence, affecting the convicted and his family as well. But it should also be noted that the convicted was awarded a death sentence by Law because of his clearly established inhuman actions. It’s not only the convict's family that is distressed but also the families that were affected by the convict's actions, waiting if justice will be served and the guilty be punished. Merely stating delay in disposing the mercy petitions should not be reason enough to commute the death sentence. This delay could have been a result of complex procedures under the constitution for processing the mercy petition or due to the presence of government's unseen hand to harness their political interests. Whatever be the reason, citing delay to be inhuman, for reducing the sentence is also nothing short of being inhuman to the families at a los
Why should the ground of delay be used to support abolition of death sentence? What about the victim who is waiting for the same period of time for justice? Your view seems to be totally inclined towards the offender. I stand strongly against criminals being maintained at State expense.
It is beyond my understanding how the government machinery functions.A bill takes years to get passed,cases takes years to get resolved and no wonder it has taken 11 years for the president to just decide whether the killers should be hanged or not.It is high time our government get sessions on prioritizing their tasks,communicating effectively,time management,setting goals and finishing tasks as per deadlines.Probably lack of such qualities makes most of our government organizations failing organizations
I think, mercy petitions ought to be considered favorably from those who have accepted their involvement or complicity to the crime during the trial stage itself, because there exists possibility of reforming such convicts. However, there is no justification in delaying decisions beyond 3 months in disposing mercy petitions.The other point is no justification need to be provided for granting mercy because these are "mercy petitions" and decisions not to be subjected to reasoning, scrutiny or precedence. It should be the sole discretion of the President.
I agree with most of the points the author has made, including the fact that granting a lesser punishment than the one fixed will be better for the public welfare and that it shows a broad-minded attitude on the part of the government. But i find it absolutely appalling that the author shows such sympathy towards these individuals in the first place. These men are on the death row for a reason. And I think those looking for the signs of a liberal and civilised society should find some respite in the fact that in a country of so many people, where so many heinous crimes are committed everyday, such few people land up on the death row, most facing life terms and other milder punishments. What considerations do the victims and their families get? soothing words in columns like these and condolences from ministers? Although i am on the fence with the issue of capital punishment, but i think the havoc that the procrastination plays with the minds of these criminals is a fitting punishment.
the incurable habit of procrastination coupled with the votebank politics has led to this scenario. If you can't hang them, then do away with that. Hard core criminals must also be put on life sentence as has been done in most of the countries.
I beleive that the ruling for the mercy plea should be abolished all together. First of all it takes years for Supreme Court to make a ruling and most of the criminals take an alternate route of mercy plea. Well Emotional stress is there for the culprit family but our "Top of the class prison stystem" where prioners run the prison due to endless corruption. I beleive Supreme court should have last say and once a ruling has been done it shouldn't be delayed.
It is high time that India must do away with capital punihment as the convicts get entangled in the 'mercy petition' thing and have to wait for long in mental pain and agony. It is well established now that the lack of political will is the reason behind such late decisions. Moreover, the move to hang assasins of Rajeev Gandhi after 20 years seeems to please the so called Nehru-Gandhi dynasty of Congress. Better would be to immaculate the western system of punishment where the imprisonment duration adds up for differnt crimes and assures 72-250 years of imprisonment,so that if someone come out of the bar is a feeble person or a dead body.
The draconian dreadfulness ,arising from the death punishment must be decided deftly in purview of country's justice.Either death or mercy must be decided immediately.
Our delay in Justice system cannot be used to push for abolition of Capital Punishment. I ask Hindu Editors again, what if Kasab's punishment is reduced to life imprisonment and then some Terrorist Group hijacks an Indian plane and demand a release of Kasab.
we both are senior citizens aged 80 & 73 years residing in Delhi after putting over 40 yrs in the central govt.We are in full agreement with the facts narrated in the above opinion.I have been reading your paper about the Anna Hazare's movement against corruption and his statement hat nearly 110 to 140 MPs in our Parliament have criminal back gound.Our view is that human beings are not borne as criminals but they are made as criminals &terrorists by others who escape some how. If we guess, a Bill for abolishing capital punishment has been under consideration for a long time but not taken up so far like the Lokpal bill? Why not forward the above opinion to Anna Hazare's team and ask them to start a movement for passing this pending Bill to abolish capital punishment altogether from our country?
When procrastination can put on such an inhumane face, then how merciful can a merci petion be . . .!
It is true though that mercy plea petitioners have to go through acute mental stress but the writer has failed to see the other side of the coin. The persons sentenced to capital punishments are held guilty in some of the most atrocious crimes often killing many people. What good can they be to the society or the world? The system should take necessary steps to fast track the procedure for acceptance or rejection of the mercy pleas without being politically biased
For once, the slow moving judiciary, bueraucracy and the snail placed political leadership has served the cause of the people barbarically killed by these three. Death would be most merciful of all punishments. Their wait of 11 years is nothing compared to the people who lost their loved ones. Any show of mercy to people like these does not show our neo-liberal credentials, instead it exhibits the impotancy of the people who run the system.
The writer is absolutely right. As he mentioned in the last paragraph, The Indian Supreme Court should step in, examine and strongly correct the present system. It is quite surprising to hear that the Honourable Indian Presidents have waited for many years to clear petitions. If this is the situation with the President then what about other governing body?
Mercy should be considered for the people who have Indian nationality
It may be a good idea if all the mercy petitions are referred to the Human rights commission for a second opinion. Of course the chairman of the present Human rights commission must be changed.
Politicians taking on executive responsibilities (Ministers) always remain focussed on politics, even at the cost of their responsibilities toward their constituents. For politicians, winning next elections is more important than the mental agonies of people affected by their lack of concern toward their ministerial responsibilities. We are living in 21st century when most information flows through e-channels and communication media is based on emails, facebook and twitter. Our ministers still feel more comfortable behind piles of files, which take years to move that too if the concerned interests allow them to move. For many of us living outside of India, Indian state is an enigma. Our younger genertation is leading the networking process of entire world, at the same time our rulers continue to hide behind those dilapidated piles of files and wait for their indescisions to turn to political controversies, such as this one.
Hanging is not the only solution to death-convicts of the Rajiv Gandhi. Instead of delaying their mercy petitions, government should take a reformatory step to channelize their vigour in them.Keeping the case pending will not only derogate the position of the government but also will be like scratching the wound of the guilty which is unlawful.
Please Email the Editor