Death Penalty Tests India

Are three men about to be unfairly executed? AsiaWATCH reports from southern India.

AsiaWATCH — Throughout the civilised world, the issuing of a death sentence is usually greeted by some controversy and India, a country known for its peaceful yet chaotic democracy, is no different.

In August, India’s President Pratibha Patil formally rejected clemency pleas made by three men sentenced to death for their involvement in the 1991 assassination of Prime Minister Rajiv Gandhi.

The decision came after a lengthy ten years of contemplation and was met by huge protests, particularly in the normally laid-back southern state of Tamil Nadu.

Whilst these protests highlight the underlining tensions that have long existed between southern India and the remainder of the sub-continent, they also bring to the fore the possibility that a significant miscarriage of justice could be committed.

Have no doubt – Rajiv Gandhi’s assassination was a horrendous crime committed by those aligned to the Liberation Tigers of Tamil Eelam.

Mr Gandhi and 14 others were brutally murdered at a political rally held on the outskirts of Chennai on May 21, 1991. A female suicide bomber detonated the explosive as she kneeled down to kiss Mr Gandhi’s feet in a traditional Indian display of respect.

Yet advocates for death row convicts Murugan, Santhan and Perarivalan make a persuasive case that hanging the men would be grossly unfair and out of proportion with their crimes.

A year after Mr Gandhi’s death, a special investigations team charged 41 people with offences relating to the assassination, with 26 people eventually sentenced to death following secret trials conducted under the far-reaching terrorist act.

After appeals to the Supreme Court, most of the guilty had their sentences reduced. Only the three death row convicts and one woman named Nalini had their death sentences upheld.

This despite all three men having very little involvement in the assassination. Confusion reigns over each convicts’ exact level of involvement because their secret trials restricted public disclosure.

There is no doubt they were, at the very least, LTTE supporters. But in Tamil Nadu, it is not uncommon even today for Tamilians to have some sympathy for the terrorist organisation, which fought for a separate Tamil state. It is known, however, that one man’s conviction was based on providing a battery that, allegedly unbeknownst to him, was later used in the explosive.

Charging the men under India’s terrorism act allowed police and prosecutors greater flexibility than that offered in a normal investigation.

Witnesses were not forced to disclose their identities, for example. The men – all aged under 21 – were charged as adults, an unusual legal decision in India.

Police-obtained confessions were also declared admissible in Court, which also does not typically occur in corruption-plagued India.

In later appeals, it was ruled that the assassination was not an act of terrorism and the trials should have therefore been made public. The confessions, however, were ruled admissible as evidence and the convictions upheld.

These issues have of course already faced judicial scrutiny, making it futile for lawyers to cover these points once again.

Instead, they will argue that having to wait 11 years for the President to make a judgment on the Tamil Tigers’ clemency pleas amounts to cruel and unusual punishment.

In addition, they say it would be unfair to hang the men when Nalini, the woman also sentenced to death, had her sentence commuted in part due to her gender.

The Supreme Court appears willing to consider these arguments and has granted an eight-week stay of execution.

Whatever the outcome of its much-anticipated decision, the Supreme Court will set a considerable precedent.

Presidential or gubernatorial decisions on mercy pleas are typically final and, whilst there is no mechanism to question the legality of their decisions, the Supreme Court will be dictating whether there should be a timeline on such petitions.  Hence its final decision will likely cause debates on constitutional, political and regional lines.

A dangerous precedent would be set if decisions to commute death sentences were made on regional basis, yet in a post-LTTE world this is exactly what an overwhelming number of southern Indians are demanding.

India’s Supreme Court should act to ensure that it is not making decisions based on regionalism, but that it is avoiding a devastating miscarriage of justice.

 

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Luke Hunt is a foreign correspondent, author and occasional photographer who has covered much of Asia fr the last 30 years.

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