‘Death penalty is nothing but brutal murder by state’ – K.T. Thomas

K.T. Thomas, former Supreme Court judge, presided over the bench which awarded capital punishment to four convicts in the Rajiv Gandhi assassination case.

(As told to T.S. Sreenivasa Raghavan)

 

http://www.asianage.com/ideas/death-penalty-nothing-brutal-murder-state-814

Indian President’s dismissal of mercy petition, unanimous resolution passed by the Tamil Nadu Assembly and J&K chief minister’s latest tweet on Afzal Guru have brought to the forefront the debate on capital punishment. It, in fact, finds its fuel whenever courts pass verdicts in sensational cases sentencing the accused to the extreme penalty. However, at other times, the subject remains dormant. Interestingly, when a sessions judge of Madras sentenced to death all the 26 accused in Rajiv Gandhi assassination case, it went without a debate. The Supreme Court later set aside the sentence against 22 of the accused and confirmed death sentence against only four. Even then, the volatile subject escaped public debate.
However, the issue was winched to the fore when the Supreme Court handed down death sentence to a rapist whose mercy petition was dismissed by the President of India. The accused was finally hanged after a very long period. In the case of Rajiv Gandhi assassination convicts too, the situation is not any different as they’ve spent a very long period in cells with the noose hanging before their eyes.

It was my misfortune to have presided over the Supreme Court bench which pronounced the judgement as per which the four accused were sentenced to death.

I, in fact, don’t remember to have come across any other case in the history where such a record number of persons were sentenced to be hanged initially as in the Rajiv Gandhi assassination case. When I started my practice as an advocate, capital punishment was very frequently imposed and the law then required the sessions judge to give his special reasons for not awarding capital sentence. That law was changed and when life imprisonment became the normal sentence the sessions judge was required to give special reasons for awarding capital punishment!

The law was tightened by the Supreme Court further when it later ruled that unless the case is rarest of the rare, the court can’t impose the extreme penalty. This expression of “rarest of rare cases”, however, remained only in semantics.

The high courts and the Supreme Court had awarded death penalty whenever they felt the facts of a particular murder case showed more cruel overtones than others. Most murders being gruesome in character, it became the choice of a judge to employ his vocabulary to describe the offence in a particular case as rarest of rare cases. You’ll be surprised to know most murders in terrorists’ attacks were not counted as rarest of rare cases. But, whenever the victim of a murder happened to be a celebrity, then, the death penalty was awarded describing it as rarest of rare case.

The verdicts on Indira Gandhi’s assassination case, Rajiv Gandhi’s assassination case, General Vydiya’s murder case only confirm this. But none of the murder cases during 1984 Sikh riots was treated as rarest of rare cases. It was Justice Sarkaria who authored the well known judgment of the Supreme Court in Bachen Singh case who propounded the doctrine of the rarest of rare cases.

Articulating a standard for discerning such cases he said rarest of rare case is the one in which the alternative sentence of life imprisonment would be unquestionably foreclosed. I point out this because, something interesting happened when Supreme Court pronounced judgment in Rajiv Gandhi assassination case.

It was a bench of three judges with me, and Justice Wadhwa and Justice Mohammed Quadri. When it came to Nalini, the Supreme Court, of course, held she was also to be convicted. But, one of the three judges advancing his reasons held she could not be hanged to death.

However, the other two judges pronounced she was also liable to be hanged till she was dead. Thus, going by the majority judgement she was given capital punishment. The verdict, however, came up for a review when a petition was filed in the Supreme Court. As a senior judge of the bench, I told the advocates the scope of review was extremely limited. This was because the Supreme Court would not correct its judgment in review unless there was any error apparent on the face of the record. So, we decided to dismiss the review petition. However, I’d a new flash in my mind before the order on the review petition was pronounced. So I pronounced my order allowing the review petition on a new ground.
I said when capital penalty was imposed by two judges of a bench of three with one rooting for life imprisonment, then, the standard laid down for the rarest of rare cases doctrine would come to play. That’s to say the lesser alternative was not unquestionably foreclosed since one judge had voted against capital punishment. The other two judges didn’t agree. But, finally the constitutional head accepted what I said. Article 21 of the Constitution says no man shall be deprived of his life and liberty save in accordance with the procedure established by law. It means if the law is just, fair and reasonable then even your life can be taken away by that law. Capital punishment is killing a human being. Now the law is that killing a person is not an offence when it has the protection of law! Can a human being be killed with legal sanctity?

Jurists and human-rights activists have divided themselves into two classes, retentionists and abolitionists. How can you be exempted from punishment when you kill a person? What is a punishment? You punish your child for what? Evidently you punish a person to reform him.

In the past, punishment had a three-fold objective: reformation, deterrence and retribution. The notion of retribution is now regarded as outmoded and uncivilised. The tooth for a tooth and eye for an eye doctrine is not accepted by most modern day criminologists. Of the remaining two, the objective of reformation becomes out of range when you eliminate an offender.

Then, what remains is the theory of deterrence. I think the only justification advanced by retentionists is that capital punishment operates as a great deterrent. But, does it really? Even today public beheading of offenders is a dreadful sight required to be witnessed immediately after the Juma worship on Fridays in Saudi Arabia.

This means even after 1,000 years offenders have not come to an end in such countries where population is very insignificant. I do agree an offender escaping punishment encourages others commit similar offences. Yet, we need to conduct a study to find out whether capital punishment works as a real deterrent. As far as I know, no one has made a comparison on the impact of death penalty and life imprisonment.

But, we’ve a record relating erstwhile states Travancore and Cochin. Maharaja of Travancore was the first one to abolish death penalty in 1940. Later, the Maharaja of Cochin issued a similar proclamation in the same year. Later, when they became part of the Indian Republic in 1950, death penalty had to be restored. Meanwhile, criminologists made a comparison of the murders which took place in these two states between 1940 and 1950 and 1950 and 1960. They’re flabbergasted to find that the murder rate during 1950-1960 was much above than corresponding period when death penalty was not in the statute book. It shows death penalty would act as a deterrent is only a myth. Great philosopher Aurther Koistler narrates another interesting episode when in the earlier years death penalty was imposed even for pickpockets in England. Death penalty was introduced under the impression it would check pick-pockets and whenever the hang-man killed the convict the ritual was witnessed by huge crowds. After completing the function of one such hanging episode, the police received reports that the pockets of 63 persons were emptied as they enjoyed the public hanging. That again proves death penalty is not a deterrent. Now what remain are the inhuman aspects surrounding death penalty. First, it destroys the objective of reforming the offender. Second, it forces you foreclose yourself of the obligation to correct your decision, particularly, when it’s discovered later that decision was wrong.

Third, by killing the offender you’re really committing a murder though you protect it with the cover of law. Fourth, when you kill a person empowered with law, you only share the vengeful mindset of the murderer.

Fifth, you can’t, spiritually speaking, take a person’s life which you can’t give back. Sixth reason revolves around arriving at the decision of death penalty depending on eye witnesses’ account. From my experiences, both as an advocate and trial judge, I can say with authority eye witnesses are invariably coached up. The kith and kin of the victim would generally exaggerate the ferocity of the murder. This being so, your conclusion that a murder was committed in a very gruesome manner could be based on a fragile foundation. Besides, if you can count convicted offenders in murder cases, you’ll discover 90% belong to society’s lower strata. I don’t commit murder or perhaps none of you will. This is because of our upbringing. But, those who live in slums and those who’re the children of vagabonds might not know the value of life as much as the children of the educated class. Neither would they know spirituality. So, they resort to violence without any moral inhibition. After reading the book authored by Magsaysay winner Kiren Bedi, I’m convinced every offender can be reformed.

But, unfortunately neither government nor public pay its attention to the issue of human issue of reformation. They know only short-cut; liquidate the criminal and rejoice in the wild pleasure that brings about. Let me caution you from my long experience. It’s quite possible that guilty could be found innocent by court. But, sometimes, though very rarely only, even innocent might be found guilty.

This is the consequence of sensationalisation of cases. We’ve one solitary instance in history when a Judge found that the accused was actually innocent.

Yet, he’d to sentence him to death penalty to appease a hostile crowd. It happened 2000 years ago in Jerusalem city. Now, I don’t need to tell the name of that judge is Pontius Pilothouse and the name of the condemned prisoner was Yeshua the Nazarene!

Posted in Abolish death penalty, CBI, Death Penalty, Denied Justice, download rajiv gandhi case, K.T.Thomas, LTTE, mercy petition, Perarivalan, President of India, Rajiv Gandhi assasination, Rajiv Gandhi Murder case, Supreme Court of India, TADA, Terrorism, the truth speaks, Uncategorized | Leave a comment

Rajiv Gandhi Murder Case – Supreme Court Judgement & Denied Justice

Death penaltyName : A.G.Perarivalan,
Place of Birth : Jolarpet, Tamilnadu.
Date of Birth : 30-07-1971, Education : Diploma in ECE
Current residence : Central Prision, Vellore
Age when put behind bars : 19 years
Case associated : Rajiv Gandhi murder case
Charges on me : Purchased and given two 9 volt batteries
Punishment given : Death Penalty
No. of years in Prison : 21 years
Book I wrote in prison : An Appeal from the Death Row (Rajiv Murder case – the truth speaks) to download, click here
Theme of the book : Denied Justice                                                                     ————————————————————–

References:- Download Rajiv Case Supreme Court judgement here:–                       SC Judgement  – FULL

  1. Part 1 – Thomas.J
  2.  Part 2 – Wadwa.J 
  3. Part 3 – Quadri.J  

Reported journals:- AIR 1999 SC 2640;  (1999) 5 SCC 253;
1999 CriLJ 3124;   
1999 (3) SCALE 241;

The three Supreme Court Justices [Justices D.P.Wadhwa, K.T.Thomas and S.M.Qadri] delivered judgement on May 11, 1999.

Originally the above justices, wrote separate judgements. A majority opinion sets forth the decision of the court and punishments were decided accordingly.

Law journals combined all the three parts, gave paragraph numbers at their own and published. Hence the paragraph numbers were different in each publication. ————————————————————————-

Forewords by Justice V.R. KRISHNA IYER , (Former Judge, Supreme Court) in the book “An Appeal from the Death Row”:-

Fax and Phone: 0484- 2370088
”SATGAMAYA” M.G. ROAD, ERNAKULAM
KOCHI . 682 011.
Email: satgamaya@dataone.in, (Website: http://www.vrkrishnaiyer.org)

PERARIVALAN is now under sentence of death in the Vellore Jail. His soul is precious, his values noble, his jail life has not made him a criminal. Indeed, he redeems his colleagues and his book is evidence of the noble work of the man.
He has made an appeal against death sentence. I agree with him that death sentence is no longer valid in putting an end to murder.
Life is dear and given by God. Man, as Gandhiji put it has no right to take it away. I support this stand and hope that like many other countries India too will abolish death sentence.

(V.R. KRISHNA IYER)
2006 July 31.                                                                                         ——————————————————————-                                                                                                                                                                                                            At the age of 19, I was tortured by investigative agencies and was portrayed as a bomb-making specialist by the media just because I had a diploma in electronics and communication. But K. Rahottaman, the chief investigation officer in the Rajiv case, who retired in 2005 as DSP, said they had no evidence.Read full article.

Posted in Abolish death penalty, CBI, Death Penalty, Denied Justice, download rajiv gandhi case, Falsely implicated, Judgements, LTTE, mercy petition, Perarivalan, President of India, Rajiv Gandhi assasination, Rajiv Gandhi Murder case, Supreme Court of India, TADA, Terrorism, the truth speaks | Leave a comment

The root cause for Maoism & Socio Economic Problem.

Nandini SundarThe Supreme Court criticises the Chhattisgarh and Central governments and orders the disbanding of Salwa Judum.

THE case Nandini Sundar vs State of Chhattisgarh arose out of a writ petition (civil) filed in 2007 in the Supreme Court by Nandini Sundar, a Professor of sociology at the Delhi School of Economics; Ramachandra Guha, a historian; and E.A.S. Sarma, former Secretary to Government of India and former Commissioner, Tribal Welfare, Government of Andhra Pradesh. The petitioners had alleged that the State of Chhattisgarh was actively encouraging a group called Salwa Judum, a civil vigilante structure, to counter Maoist insurgency, and that had resulted in violation of human rights.

A documentary film produced by Channel 4 of Britain was included as Annexure F-3 in the evidence provided by the NHRC.

The court locates the heart of the conflict and repression in Chhattisgarh in the amoral political economy endorsed by the state and the departure of state policy from Nehruvian socialism in favour of a free market economy, the natural corollary of which is “muscular and violent statecraft.” The intimate connections between neo-liberal economic policy and a violently authoritarian state have been demonstrated in one country after another. The routine derogation of fundamental rights and human rights, large-scale displacement and dispossession of primarily indigenous tribal communities is an inseparable part of this process. ( Development, justice and the Constitution by Kalpana Kannabiran)

Many analysts have expressed surprise that the Reddy-Nijjar Bench devoted 22 paragraphs of its judgment to a discussion of ideological issues, problems of poverty, illiteracy, hunger and squalor and accumulation of wealth .

Download the Full Judgement here Dismandle of Salwa Judum – Operation Green Hunt – Maoist

Posted in Channel 4, Delhi School of Economics, Judgements, Maiost, Salwa Judum, Socio Economic Problem | Leave a comment

Your Right to Assemble, hold Meeting and Demonstrate

It is a well settled position in law that the freedom of speech and expression, guaranteed under Article 19(1)(a) of the Constitution of India, cannot be subverted in an arbitrary manner. In a true democracy dissenting opinions should not be discouraged. Democracy can be alive and thriving, only if the State provides the necessary impetus, by encouraging healthy debates and exchange of ideas.

The constitution of India in Article 19(1) (b) guarantees “the right to assemble peaceably without arms”.

Permission for conducting a “signature campaign” with reference to an appeal to the Government of India to remove the ban on “Liberation Tigers of Tamil Eelam” (LTTE) in a public place.

The rights conferred on the citizens by Article 19 of the Constitution are precious rights and are not to be lightly breached or restricted by the State or any functionary of the State. Any regulation of exercise of those rights must be for the purposes specified in Article 19 of the Constitution itself, and that power must be so exercised as to sub serve the larger public good.

The power to impose restrictions is not the power which is available for exercise in an arbitrary manner or for the purpose of promoting the interest of those in power, or for suppressing dissent Democracy can be made dynamic an truly alive only when there is free market for ideas and discussion and debate is not only permitted but is encouraged. All expression of opposing view point cannot be regarded as dangerous to the safety or security of the country and all expressions which

Get the Judgements Here

1. Pugazendhi Thangaraj -Vs- City Commissioner, Chennai – MHC

2. Sou.Sundaramoorthi -Vs- City Commissioner, Chennai MHC

3. Va. Naa. Thanmaanan -Vs- City Commissioner, Chennai MHC

4. C.J.Rajan, Peoples Watch Vs- DSP

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Live in Relationship, Maintenance, Domestic Violence Act

MaintenanceA women not married but in a relationship in the nature of marriage can claim maintenance from her partner. But it should fulfil the following conditions.

Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

THE SUPREME COURT OF INDIA
CRIMINAL APPEAL NOS. 2028-2029__OF 2010
D. Velusamy   -versus- D. Patchaiammal

Get the full JUDGEMENT here Live in Relationship

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Love, Caste, Harassment

Marriage LoveSupreme Court of India

…… she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law.

The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest, as they will result in destroying the caste system.

We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.

Get the full Judgement here Lata Singh Vs- State of UP

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Mere Membership in ULFA & Advocacy

Supreme Court of India,

Judgment delivered by MARKANDEY KATJU, J.

Mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence.

“Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat.

Get the full Judgement here Sri Indra Das -Vs- State of Assam

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