Vagaries of Justice
Posted on 1-October-2011
Rajiv Gandhi, Prime Minister of India from 1984 to 1989 was killed by a suicide bomber on 21st May 1991 while campaigning in the Indian state of Tamilnadu during that year's elections to Indian parliament. An investigation team from the Central Bureau of Investigation filed charges against a large number of Sri Lankan Tamils believed to be from the LTTE and their Indian associates. The trial court after hearings that lasted from 1994 to 1997 sentenced 26 persons to death. In 1999, the Supreme Court of India confirmed the death sentences of four: Nalini, Peraivalan, Suthendraraja alias Santham and Sriharan alias Murugan while sentencing others to prison for life and acquitting the rest. These four appealed to the President of India for clemency in the year 2000. Nalini's death sentence was commuted to life imprisonment separately a while ago. The fact of her having borne a daughter from her marriage to another of the death row convicts, Murugan, probably weighed in her favour. In August this year, the President of India turned down the clemency petitions of the other three and they would have been executed on 27th August but for an eight-week injunction ordered by the Madras High Court while it heard an appeal filed on their behalf. The main ground for the appeal is that an eleven-year wait for execution while their clemency petitions awaited the President's decision was already punishment enough for them.
Law courts, no matter how compassionate, are bound by the evidence before them and by the law, precedents and broad principles of jurisprudence while giving their verdicts. The whole purpose of giving the highest member of the executive--the President of the Republic in the case of India-- the privilege of pardoning or reducing the sentences awarded by the courts is to allow the highest executive to go beyond the law and to give some humane consideration to mitigating circumstances. In the case of the three whose clemency petitions were finally turned down by the President in August, there were at least three mitigating factors at the time of their rejection. The first of these arises from a general principle which is that howsoever deeply they were involved in the planning and execution of the plot to kill Rajiv Gandhi, none of them took part in the actual act of killing and they could as much have been sentenced to life in prison as to execution, depending on the judges' assessment of the evidence and their interpretation of the law which can in the best of systems vary from judge to judge and from one moment to another. Secondly, the three having been arrested between June and August 1991, had spent twenty years in incarceration--fine distinctions between police custody, judicial custody and prison term are immaterial from the point of the person deprived of freedom--by the time a final decision was taken on their petitions, while life imprisonment--a sentence given for the most serious of crimes to anyone not sentenced to death which according to the principles set down by the courts themselves should be given only in "the rarest of rare" cases-- in India in nearly all cases comes down to around fourteen years in jail. Thirdly, not knowing for eleven years how soon one is going to be executed is mental agony of the worst possible kind. Since, in deciding on clemency petitions, the President of India is not advised by a body of people independent of the executive, but by India's ministry of home affairs, it cannot be asserted with certainty that the President receives advice totally free of political calculations of the moment. It is entirely possible that in the case of these three prisoners on the death row, the ministry of home affairs, while advising the President, was not indifferent to the fact that the person who exercises unchallenged political authority over the present government of India is Rajiv Gandhi's widow. It would be ironical if after duly considering the latest appeal of the three prisoners, the Madras High Court decided to reduce their sentences to life imprisonment and if the Supreme Court of India upheld that decision. The courts would in that case have shown that quality of mercy while the President of India would have missed an opportunity to do so. In the mean time, the three who are condemned to die will still have to wait for days or months to know if they will die on the scaffold in a few days, weeks or months or live their normal span of life.
In the self-same month of August, there was justice or injustice of another kind. Soumitra Sen, a lawyer practising in Calcutta High Court, had been appointed by that court a receiver in a dispute between the Steel Authority of India and the Shipping Corporation of India. The Court would presumably have exercised some oversight over his work as a receiver and if it had done so with due diligence his misdeed of having in 1993 wrongfully deposited the moneys that should have accrued to one or the other party to the dispute into two personal savings accounts of his own would have been noticed by it. Obviously, the High Court was unaware till 2003 of Soumitra Sen's misdeed, because in that year Soumitra Sen was made a judge of that High Court. Appointments of judges to a High Court are made on the recommendation of the Chief Justice of that High Court and after a well laid down vetting process. Only after he had served for some time as a judge of Calcutta High Court that a committee of judges appointed by the Chief Justice of India found him guilty of financial wrongdoing. In 2006, he returned the money he was found by the committee to have misappropriated. The Chief Justice of India recommended his removal, which can be done only by impeachment by parliament. In December 2009, an impeachment motion was introduced in the Rajya Sabha, the upper house of the Indian parliament. A committee appointed by the Chairman of the Rajya Sabha found that Justice Sen had indeed misappropriated funds when he had been functioning as a receiver. Finally, the Rajya Sabha debated and by a near unanimous vote found him guilty. At a time when in the wake of a massive anti-corruption rally in Delhi, criticising the government and parliament for shielding and promoting corruption had become the flavour of the moment, when it suited everyone to be seen as a fighter against corruption, no one in the political class had an ear for Justice Sen's main argument in his defence which was that he had done no wrong as a high court judge, even though no case had been made against him for any act of his as a high court judge. In all this no fingers have been pointed at Calcutta High Court for lax oversight of Sen's functioning as a receiver, nor at those who were wanting in watchfulness when Sen was appointed a judge. It was easier to convict Justice Sen.
Impeachment by parliament in India or elsewhere is a political and not a judicial process. To pretend otherwise is idle. In India, impeachment proceedings were initiated in 1991 against Justice V. Ramaswami, a judge of the Supreme Court. He had been accused of several acts of financial wrongdoing during his time as Chief Justice of Punjab and Haryana High Court. A committee of judges appointed by the Chief Justice of India had found many of the accusations to be true. An impeachment motion was introduced in the Lok Sabha, the lower house of Indian parliament, by the main opposition parties. A committee appointed by the Speaker of the Lok Sabha agreed with most of the findings of the committee appointed by the Chief Justice of India. The impeachment motion, regardless of the strength of the case against Justice Ramaswami did not carry for want of support from two thirds of the members present and voting, because the Lok Sabha members of the Indian National Congress, the party in power decided to abstain. Every school text book of Indian history used to mention the impeachment of Warren Hastings, the first Governor General of British India, in the British House of Commons. That the impeachment motion was political and that it failed because of the political dynamics of the moment are common knowledge. Nearer our times, Bill Clinton was acquitted by the US Senate because of a vote on party lines; the exertions of the special prosecutor and the machinations of the Republican Party were nullified.
Did Bill Clinton, Warren Hastings or Justice V. Ramaswami get their deserts or did Justice Soumitra Sen receive justice? Have the punishments already suffered by Peraivalan, Suthendraraja and Sriharan exceeded what they merited or do they really deserve to die? Is there an objective, dispassionate way of answering these questions? If there is not and if emotion must inevitably thrust itself upon judicial decision making, then it is better that compassion and sympathy prevail over anger and retribution. And the President of India has been given the power to pardon or diminish the sentence of a convict so that he can in exceptional, deserving cases be charitable and forgiving, keeping himself above political passions of the moment.