Tamil Nadu (October 28, 2011): The Central Government of India seems committed to break almost seven years de facto moratorium on death penalty, as it has strongly opposed the commutation of death penalty to three Tamil nationals, accused for plotting the assassination of Rajiv Gandhi former Prime Minister of India. In a affidavit filed in TN High Court the GOI explained that opinion of various sections of Civil society, pleading for commutation of death sentence carries no value in the Government’s eyes.
The Centre is reported to have said, in the affidavit that “just because some eminent personalities, social organisations, political parties, MPs, MLAs, former judges and jurists have written to the government of Tamil Nadu or to the President of India it cannot be considered to be a valid ground to commute the death sentence awarded to the petitioners into life imprisonment.”
Strongly opposing the petitions by three Rajiv Gandhi assassins challenging their death sentences, the Centre on Friday said the delay in the disposal of the clemency pleas was not a valid ground for commutation of capital punishment, reports The Hindu.
“However long it may be, is not a mitigating circumstance or can be construed as a valid ground for commutation of death sentence and in any event does not reduce the gravity of the crime,” the Centre said in its counter-affidavit in response to the petitions filed by Murugan, Santhan and Perarivalan.
On August 30, a division bench comprising Justices C. Nagappan and M. Satyanaryanan, had stayed for eight weeks the execution of the trio.
Today, when the petitions came up, the Judges reportedly adjourned the hearing on the petitions to November 29 as the Supreme Court was hearing a petition for transferring the petitions to another High Court.
In the affidavit on behalf of the Centre, Joint Secretary (Judicial) in the Union Home Ministry, J.L. Chugh, pointed out that the power of the President under Article 72 of the Constitution “is a discretionary power which cannot be taken away by any statutory provision.”
The power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provision or authority, the affidavit said, adding that “exercise of power under Article 72 of the Constitution is not curtailed by any limitation as to the time frame within which such power conferred might be exercised.”
GOI supports deterrent theory of punishment:
Though the world wide trend is towards “reformatory theory of punishment” the Government of India has favoured “deterrent theory of punishment”. Asserting that deterrent punishment alone could prevent other potential offenders from committing such crimes, the counter-affidavit said it was also likely to dissuade people from associating in future with any terrorist organisation in committing such diabolical and heinous crimes.
Besides, the death sentence awarded by the trial court had been confirmed by the Supreme Court, which had also dismissed review petitions filed by them, the Centre said.
The secretary said that since the petitioners had not challenged rejection of their mercy petitions but only the delay in rejecting them, they were liable to be dismissed on that ground alone.
Rejecting the allegation of “discrimination” in the rejection of the mercy petitions, the affidavit said that the President after due consideration had rejected all the three petitions.
If such views were to be considered as legally valid and sufficient to commute the death sentence awarded to the petitioners into life imprisonment, “that will constitute a bad precedent and in future is likely to create and be a cause for communal and religious protests and unrest.
It was pertinent to mention here that some leaders of political parties/social organisations “continue to support LTTE for their own vested interests,” the Centre said.
“They are now supporting the commutation of the petitioners’ death sentence into life imprisonment in order to seek political advantage from the issue. Some of these political parties while ruling the State or while being part of the government of India had recommended a ban on the LTTE and also recommended the rejection of the mercy petitions,” the affidavit said.
Pointing out that the main ground of challenge was “delay in considering and disposing of their mercy petitions and it had caused mental agony and hardship to them,” the affidavit quoted the petitioners as saying “the delay in disposal of our mercy petitions also gave the three of us a hope that we may be given an opportunity to live. We have, therefore, putting aside out agony and shadow of death, equipped ourselves educationally…”
Admitting that the petitioners were lodged in jail for the past several years, the affidavit said they lived normal lives in prison like other prisoners and given opportunities to pursue education of their choice.
The Centre said the allegation of violation of fundamental rights was “an afterthought” after rejection of their mercy petitions.
The Centre said Murugan and Santhan were Sri Lankan citizens and hardcore militants of LTTE, who infiltrated into India clandestinely with the sole intention of assassinating Rajiv Gandhi.
Tamil Nadu’s affidavit:
In a separate affidavit, the Tamil Nadu government said the State Governor had rejected the mercy petitions “as there are no extenuating circumstances warranting mercy.”
The Principal Secretary to the State Home Department, Rameshram Mishra in the affidavit on behalf of the government declined to remark on the claim about public support for commuting the death sentence and called for dismissal of the mercy pleas.