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Open Letter: Don't hang them

An open letter to the President of India , Smt. Pratibha Devisingh Patil

by William Nicholas Gomes

RE: Commutation petition as per Art. 161 of the constitution of the Constitution of India to commute the death sentence of the three prisoners, Santhan, Murugan and Perarivalan currently lodged in Vellore Central Prison.

(September 06, Hong Kong, Sri Lanka Guardian) I am William Nicholas Gomes, a human rights activist and journalist. I have been campaigning for the abolishment of the death penalty for years. I want to start my appeal to you by quoting a comment of eminent jurist, W.J. Basil Fernando, who is the Director for Policy and Programme Development of Asian Human Rights Commission (AHRC), “I am opposing the execution of the killers of Rajiv Ratna Gandhi, not because they are the killer of 6th Prime Minister of India but it is because no State has a right to take the life of a human being, it being against the Right to Life. I am for abolition of death penalty”.

I am really very hopeful and praise the decision taken by the Madras High Court, in southern India which suspended the execution, of Santhan, Murugan and Perarivalan, three men who were earlier sentenced to death for the assassination of former Indian Prime Minister Rajiv Gandhi scheduled for September 9, by eight weeks high, according to local media reports.

I am therefore writing to you in connection with the impending execution of the three prisoners whose mercy/clemency petitions were recently rejected by you, a fact that I have came to know by the newspapers. I am presenting this memorandum for the pardon and commutation of death sentence into one of life of the said three persons.

The Tamil Nadu assembly passed a unanimous resolution asking you to review the mercy petitions filed by the three convicts all convicted for being part of the group that conspired to kill the former Prime Minister in 1991 and who were sentenced to death by the Supreme Court in 1999 to commute the death sentence to life imprisonment, according to local media reports.

In today’s world the trend in criminology is to reform the convict and not to be vindictive. An eye for eye is no solution to any human problem.

As I understand that no human being however high, even the Judges of the Highest Court in a country are infallible. Evidence may be found out later for reversing the conviction and by that time it would be too late as death sentence already carried out is irreversible. Several such cases have occurred in history.

For an instance, even if the Judges may be right in convicting the accused on the evidence presented before them, the prosecuting agencies might have been flawed in collecting the adverse evidence, due to incompetence, negligence or bias. There are no statistics that in the countries where the extreme penalty is abolished, there is an increase in commission of heinous crimes, or to support that in counties where the death sentence is retained, there is no repetition of similar cruel crimes.

I wish to bring to your notice that the validity of the death penalty as a punishment was questioned more than once in the Supreme Court. The court held the penalty valid on the ground that for the imposition of death penalty, which is no longer mandatory; reasons have to be furnished as the law stands today. For supporting its ruling that the death sentence is a valid penalty, the court evolved the principle of “rarest of rare cases”. It is a major concession to the contention of Human Rights activists that death penalty should be abolished.

I know that the crime of the said three person is horrendous and they should be punished, but, not by the death penalty.

Dear President, Your jurisdiction transcends ‘the rarest of rare cases’ jurisdiction of the courts. Hard-core practical men who are not plagued by the philosophical questions you are plagued with advise you Steeped in the political humdrum of daily politics, they have no time to implement constitutional and human values. Sir, I would request you not “to surrender to the blind acquiescence of the familiar”. For your kind consideration I am submitting the some legal points bellow while you reconsider mercy petition.


Prolonged delay in executing sentence:

All the three accused were in this case arrested in 1991. The legal process ended in the year 1999 with the confirmation of death sentence against Nalini, Santhan, Murugan and Perarivalan. Nalini’s death sentence was subsequently commuted.

The clemency petition for Santhan , Murugan and Perarivalan was submitted in 1999 and kept pending for last 12 years until they were rejected by your office in July –August 2011. During the 20 years of incarceration none of them have even once seen the outside world through release on parole, family reasons or other grounds. In particular from the time of the confirmation of their death sentence by the Supreme Court, they have spent 12 long years in great insecurity not knowing the fate of clemency petitions.

A constitution Bench of the Supreme Court in “Smt. Triveniben v. State of Gujarat, 1989(1) SCC 678 held that undue delay in execution of death sentences amounts to violations of fundamental rights. Based on this ruling a later bench of Supreme Court held in “ Daya Sing v. Union of India” 1991(3) SCC 61, that “ – as stated that delay in execution of death sentence should be “sufficient to entitle the person under sentence of death to invoke Article 21 and demand quashing of death sentence”.

In “Sher Singh v.State of Punjab” (1983) 2 SCC (Cri) 248, the Supreme Court highlighted in great detail the psychological impact of prolonged delay of death row convict. The apex court in the “Jagdish v state of M.P.’ 2009 (9) SCC 495 also expressed its anguish at the plight of death row convicts. Speaking about the effect of delay in deciding on commutation petitions the Supreme Court said: “ The condemned prisoner and his suffering relatives have, therefore, 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 favor of the prisoner. The plight of a prisoner who has been under a sentence of death for 15 years or more living on hope but engulfed in fear as his life hangs in balance and in the hands of those who have no personal interest in his case and for whom he is only name. Equally, consider the plight of family of such a prisoner, his parents, wife and children, brothers and sisters, who too remain static and in a state of limbo and are unable to get on with life on account of the uncertain fate of a loved one. What makes it worse for the prisoner is the indifference and ennui which ultimately develops in the family, brought about by a combination of resignation, exhaustion and despair. What may be asked is it the fault of these helpless individuals and should they be treated in such a shabby manner” (paras 48, 50, 51)

In the present case, it is clear that there has been a prolonged delay in deciding the clemency petitions. The Supreme Court has pointed out such delay has extremely harmful effect on the prisoners and their families. Such unconscionable delay by itself constitutes cruel, degrading, inhuman treatment violative of Art.21 of the Indian Constitution. Such delay constitutes a valid ground for the commutation of the death sentence against Santhan, Murugan and Perarivalan.

Grounds for Fresh Consideration of Commutation Petition:

According to the information received, the persons who filed the clemency petition are Santhan, Murugan and Perarivalan. They along with 23 others accused, were prosecuted in the case know as the “Rajiv Gandhi Assassination” case relating to the assassination of the former Prime Minister, Rajiv Gandhi, during an election rally on 21st May 1991 at Sriperumbudur, 40 km from Chennai. Apart from Rajiv Gandhi, 18 others were also killed. The investigation agency, the CBI laid the final charge sheet implicating 26 accused for offences under the Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA), Indian Penal code, Explosives Substance Act, Arms Act and other laws . The trial was conducted before the Designated TADA court in poonamallee. At the end of the trail Designated TADA court convicted all 26 accused for offences under TADA (P) Act, IPC and other laws.

Confirmation of the death sentences and also the appeals filed by the accused were jointly heard by the Supreme Court. The Supreme Court, in its judgment, set aside the conviction and sentence passed by the trail court for the offence u/s 3(3), 3(4) and sec.5 of the TADA(P) Act against all accused.

The Supreme Court confirmed only the conviction and sentence under the laws only such as the IPC, Arms Act, Explosive Substance Act and other laws as it related to the different accused.

The Supreme Court confirmed the conviction u/s 120B read with 302 IPC only as against 7 accused viz., 1)Nalini b) Santhan 2) Raguraj (A2) 3) Murugan @ Thas (A3) 4) Robert Pyas(A9) 5) Jayakumar (A10) 6) Ravichandran @ Ravi (A16) and 7) Perarivalan @ Arivu (A18)

The conviction and sentence for the remaining 19 accused as regards offense u/s 120B and 302 IPC was set aside. Some of them were convicted for lesser offences and set free if they had served the maximum sentence; a few were fully acquitted and set free.

Of the seven accused referred to above, the death sentence against only four accused, viz namely Nalini, Santhan@ Ravidas , Murugan@ Thas and Perarivalan@ Arivu were confirmed. The remaining 3 were sentenced to life time imprisonment.

All the four persons filed petitions seeking commutation of the death sentences.In April,2000,the Governor of Tamil Nadu commuted the death sentence of Nalini to life time imprisonment (ref: Letter Ms.No.406 dated 24.4.2000, Home Department, Government of Tamil Nadu) and she is currently lodged in women’s prison , Vellore.

The commutation petition of Santhan@ Ravidas, Murugan@ Thas and Perarivalan@ Arivu which was pending before the president of India waiting for about 12 years was finally rejected by you in late July, 2011, as reported in all leading newspapers.

I want to note that Art. 161 is in the nature of a residuary sovereign power which does not get extinguished on the rejection of a petition of clemency or commutation. The Supreme Court in “G.Kristha and J Bhoomaiah v State of Andhra Pradesh” (1976(1) SCC157) held that, “the rejection of one clemency petition doesnot exhaust the power of the president of Governor” and there is nothing to debar the president or the Governor from reconsidering a mercy petition in view of changing circumstances, especially changes in the world opinion against capital punishment. Thus additional mercy/ commutation petitions can be submitted for consideration.

The consideration of a second or even a third commutation petition is not without precedent. In the case of Govindasamy of Erode district of Tamil Nadu successive mercy petition were dismissed and writ petitions also came to be dismissed. However, in March 2000, based on a fresh clemency petition submitted to the then Union government, an executive stay (ES) was granted pending final decision on the mercy petition. Eventually, the Union government recommended to your office to commute the death sentence to one of life imprisonment. The said prisoner Govindasamy is lodged in Coimbatore Central Prison.

The power of granting clemency is one of the prerogatives which have been recognized since time immemorial as being vested in the sovereign wherever the sovereignty may lie. “This sovereign power to grant pardon has been recognized in Indian constitution in Articles 72 and 161. In this situation I want to recall a precedent, Supreme Court in “State (Govt. of NCT Delhi) v Premraj (2003(7) SCC 121).

In its judgment the Supreme Court very clearly held that there was absolutely no evidence to establish any of the offences under the TADA Act, viz, both terrorist acts and disruptive activities. On State v Nalini and others, 1999(5) SCC 253 the SC said:

“59. From the aforesaid circumstances it is difficult for us to conclude that the conspirators intended, at any time, to overawe Government of India as by law established. Nor can we hold that the conspirators ever entertained an intention to strike terror in the people or any section thereof. The mere fact that their action resulted in the killing 18 person which would have struck great terror in the people of India has been projected as evidence that they intended to strike terror in the people – But there is absolutely no evidence that any of the conspirators ever desired ever desired the death of any Indian other than Rajiv Gandhi ---- Not even one of them has stated that anybody had the desire or intention to murder one more person along with Rajiv Gandhi except perhaps the murderer herself”.

61. “In view of the paucity of materials to prove that the conspirators intended to overawe the government of India to strike terror in the people of India we are unable to sustain the conviction of offences under sec. 3 of TADA”.

67. “If there is any evidence, in this case, to show that any such preceding act was perpetrated by any of the appellants towards killing of any police officer who was killed at the place of occurrence, it would, no doubt, amount to disruptive activity. But there is no such evidence that any such activity was done for the purpose of killing any police personnel”.

Dear President, I have quoted from the Supreme Court judgment to stress the point that while the crime committed by the accused was indeed heinous, the Supreme Court itself found from evidence that what motivated the accused was to avenge atrocities committed by IPKF in Sri Lanka. It may not be out of place to point out that, as the Supreme Court highlighted in its judgment, that not even one of the accused had the desire to murder any other Indian other than Rajiv Gandhi. (pa 59/pg.300)

I submit the background circumstances to the crime, as brought out by the Supreme Court Itself, are important factors to be kept in mind when considering the plea of those sentenced to death for commuting their death sentence to life time imprisonment.

The three death row convicts, Santhan, Murugan and Perarivalan have been in prison for the last 20 years. The acts of commutation will not in any manner erase the fact of the conviction or set them free. To the contrary, executing them will serve no purpose. Instead their continuing to serve life sentence will act as a reminder and deterrent to others.

Dear President, It is clear that it is clearly within the powers of your office to independently examine various factors underlying the case going beyond the facts and circumstances highlighted in the judicial process and arrive at a conclusion independent of the judicial finding. It is also clear that more than one clemency petition can be entertained. I urge you to consider afresh the issue of commutation of the death sentence of Santhan, Murugan and Perarivalan. Stated differently, on its violations of u/s 54 r/w 55 A IPC, s.433 (a) and 432(7) Cr.P.C and also art 161 of the constitution can independently commute their death sentence to life time imprisonment.

Dear President, I have already discussed the fact that power of the state to grant pardon and clemency are in the nature of plenary, sovereign power, executive in nature and untrammeled by the decision of the judicial process. While exercising commutating powers, the government can consider a wide variety of factors including the background of the convict, his conduct while in the prison and so on. Surprisingly however, no clear guidelines have been formulated to guide the clemency powers.

The former President of India, Dr. Abul Kalam, during his presidency between 2002-07, had formulated a set of criteria to guide the Home Ministry when it considered commutation petitions. These Include:

1. The Home Ministry, before recommending any action on a petition, should consider the sociological aspect of the cases;

2. Besides the legal aspects, the ministry should examine the humanist and compassionate grounds in each case; these grounds include the age of the convict and physical and mental condition;

3. The ministry should examine the scope for recidivism in a case death sentence is commuted to life time imprisonment through the President’s action; and

4. The ministry should examine the financial liabilities of the convict’s family.

The Supreme Court in Santa Sing vs. State of Punjab (AIR 1976 SC 2386) highlighted some issues to be considered to before deciding on nature of sentence. Even though what the SC said was in context of guiding determination of sentence, the issues are equally relevant during consideration of commutation petition. The following are the main highlighted issues: “ --- the prior criminal record, if any , the age of the offender , the record of the offender as to employment, the background of the offender with reference to education , home life, sobriety, and social adjustment,, the emotional and mental condition of the offender , the prospects for the rehabilitation of the offender, the possibility of return of the offender to normal life in the community, possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or others and current community need if any, for such a deterrent in respect to the particular type of offence”.

According to the information received all the three persons for whom I am advocating for clemency have exhibited exemplary conduct during the last twenty years in prison. None of them have any previous criminal records. During the twenty years they have been in prison, all the three of them have not only been socially useful but also very helpful to all other inmates in the central prison, Vellore. They have helped to educate other prisoners, have assisted in the formation of cultural troupes and have also been of assistance to the prison officials.

Exemplary conduct of Santhhan, Murugan and Perarivalan in prison, pre and post conviction:

Perarivalan alias Arivu

At the time of arrest Perarivalan (an Indian) was aged 19 and had a Diploma in Electronics and communications from Krishnagiri Govt. Polytechnic scoring 86%. During his long incarceration Perarivalan has secured a B.C.A (Bachelor of computer Applications) from IGNOU (Indira Gandhi National Open University). He is currently pursuing his post graduation in M.C.A.

In all the twenty years Perarivalan has not been accused of committing any prison offense or come for any adverse notice by the prison official. While in prison, he has helped educate numerous illiterate and semi illiterate prisoners.

Murugan alias Thas

A Srilankan Tamil by birth, Murugan has passed his “A” level (equivalent to +2 in India). During his stay in prison Murugan passed both his B.C.A and M.C.A from IGNOU. He has also passed a certificate course in radio and TV mechanics and also a certificate course in two wheeler engines mechanism in Jail. He is a talented painter. An exhibition of his paintings was formally inaugurated by the former Director General of prison Mr.Nataraj, IPS, in 2009. Murugan also has been very helpful to the prison inmates as also the officials. In all the twenty years Murugan has not been accused of committing any prison offense or come for any adverse notice by the prison official.

Santhan alias Ravidas

He is also a Srilankan Tamil by origin, has passed his “O” level school final exams. His novel titled “13-5-2009” has been widely acclaimed. Apart from his creative talent, Santhan is a pious and religious person. During the last few years in the prison, he is tending to the temple inside the central prison, Vellore and has been performing daily poojas and he is widely respected by the fellow prisoners and prison officials.

From the above mentioned facts it is clear that all three prisoners Santhan , Murugan and Perarivalan an important aspect of their behavior in prison in the last 20 years, which shows that there is no scope for recidivism , is their helpful, amiable and supportive conduct towards co-prisoners , particularly helping people from disadvantage families to families to acquire literacy education.

I request you that I have given an opportunity to explain in person to the grounds seeking commutation in respect of death sentences of Santhhan, Murugan and Perarivalan . I also seek permission to place for your consideration any fresh fact or circumstances which may be brought to my notice which may facilitate a just decision in this commutation petition.

As a first step towards such an eventual decision, your act of kindness by utilizing your sovereign power to grant commutation of death sentences of Santhhan, Murugan and Perarivalan will be widely welcomed by many in Tamil Nadu as also amongst the national and global human rights community. Very importantly, it will be tune with the United Nations General Assembly Resolution of December, 2010 which urged countries and states around the world to abolish death penalty. Through such an act you will also be signaling your government’s commitment to join 137 nations around the world which have, as on date abolished death sentence in their countries as an anathema of modern civilized societies.

The retributive theory of punishment is not acceptable to the modern world. Chief Justice of the Supreme Court of India has expressed similar views and are strongly advocating for the abolition of the death penalty. However, this barbaric practice remains in force in India. India must ratify the 2nd Optional Protocol of the ICCPR. I demand the abolition of the death penalty in India.

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