In a quandary over clemency

With political parties in Tamil Nadu holding divergent views, the Karunanidhi Government is dithering on the clemency petitions of the four persons sentenced to death in the Rajiv Gandhi assassination case.

IT is more than three months since the Supreme Court reconfirmed by a two-one majority on October 8, 1999 the death sentences on Murugan, his wife Nalini, Santhan and Perarivalan, accused in the Rajiv Gandhi assassination case. Yet no decision has so far been taken on executing the death sentence, essentially because the Tamil Nadu Government is in a quandary with regard to the clemency petitions submitted by the convicts to the Governor. As late as January 23, 2000, Chief Minister M. Karunanidhi said t hat "legal discussions have not yet concluded" on their plea to reduce their sentence to life imprisonment.

Lawyers point out that the ball is now in the court of the Tamil Nadu Government because it is yet to appeal against the Madras High Court's verdict setting aside Governor Fathima Beevi's earlier order (dated October 27, 1999) rejecting the convicts' pet itions. When the order was challenged, Justice K. Govindarajan ruled on November 25, 1999 that the Governor's order could not be sustained because "the procedure of getting advice from the Council of Ministers by the Governor" under Article 161 of the Co nstitution had not been followed. The Judge said that it was for the first respondent (Governor) to pass a fresh order on the clemency petitions "after getting the advice of the Council of Ministers". He quoted from several Supreme Court judgments that h eld that the Governor had no discretionary powers under Article 161.

(Nalini, Murugan, Santhan and Perarivalan sent their clemency petitions to the Governor on October 17, 1999. The petitions pointed out that Nalini and Murugan were married to each other and a daughter was born to them in prison. According to Nalini's pet ition, if she were to be hanged her daughter would be orphaned. The petitions said the four had undergone solitary imprisonment for eight years, and "this alone is a mitigating factor for commuting the death sentences" to life imprisonment.)

After the High Court's ruling, whenever reporters asked Karunanidhi whether the Council of Ministers had taken a decision on the clemency petitions, he replied that legal consultations were under way. He said on December 2, 1999 that it was the President who had to take a decision.

The fact is that the Tamil Nadu Government has been unable to take a decision on the politically sensitive issue. The ruling Dravida Munnetra Kazhagam (DMK) is in a bind, with its allies taking contradicting positions. Two of its allies, the Marumalarchi Dravida Munnetra Kazhagam (MDMK) and the Pattali Makkal Katchi (PMK), have been demanding commutation of the death sentences.

On December 19, following a meeting of the MDMK general council, party general secretary Vaiko wanted the death sentences commuted to life sentence. PMK founder Dr. S. Ramadoss wrote to Sonia Gandhi, widow of Rajiv Gandhi, asking her to request President K.R. Narayanan to commute the death sentences on humanitarian grounds. Defence Minister and Samata Party leader George Fernandes also wanted mercy to be shown to the four convicts. (The four have not yet appealed to the President because the issue is st ill before the State Governor.) A number of organisations held a joint rally in Chennai on November 30, 1999 to urge Karunanidhi to recommend the reduction of the death sentences.

Two other allies of the DMK, the Bharatiya Janata Party and the Tamilaga Rajiv Congress (TRC), have, however, explicitly said that "no mercy" should be shown to the killers of the former Prime Minister. TRC president and former Union Minister Vazhappadi K. Ramamurthi said his party would organise agitations in front of the Collectorates in the State on January 31 demanding that the Centre recommend to the President that the death sentences be confirmed. Ramamurthi pointed out that those who wanted mercy to be shown now were silent when the Liberation Tigers of Tamil Eelam (LTTE) killed Eelam People's Revolutionary Liberation Front (EPRLF) leader K. Padmanabha and 13 others and Tamil United Liberation Front (TULF) leaders A. Amirthalingam, V. Yogeswaran , Sarojini Yogeswaran and Neelan Tiruchelvam. (The Supreme Court has held that it was the LTTE alone that was responsible for murdering Rajiv Gandhi. Many of the accused, including Murugan and Santhan, were LTTE operatives.)

Ramamurthi said: "The assassins of Mahatma Gandhi and Indira Gandhi were given death sentences and they were hanged. Those who argue on behalf of the LTTE should ponder this. It will become a precedent if, in the name of compassion, the death sentences o n the four persons are reduced to life imprisonment. It will become an incentive for murdering several leaders of Tamil Nadu. I request the Centre and the President not to delay the death sentence on the four accused in the murder of Rajiv Gandhi."

The All India Anna Dravida Munnetra Kazhagam (AIADMK), headed by former Chief Minister Jayalalitha, and the Tamil Maanila Congress (TMC), led by G.K. Moopanar, have also made no bones about their opposition to the commutation of the death sentences. Cong ress(I) president Sonia Gandhi met the President and requested that the death sentence on Nalini be commuted to life imprisonment because Nalini had a daughter, but Tamil Nadu Congress Committee (TNCC) president K. Ramamurthy vehemently opposed any commu tation of the sentence.

An advocate said that the problem had arisen now mainly because there was no time-limit for the Council of Ministers at the Centre or the State to tender its advice to the President or the Governor. "If there is a delay in the execution, the condemned pr isoner can approach the court again and the court may show sympathy because he has already undergone mental torture with the death sentence hanging over him," the advocate said. He pointed out that it was in January 1998 that the trial court sentenced al l the 26 accused in the Rajiv Gandhi assassination case to death. But the Supreme Court annulled the death sentence on all but Nalini, Murugan, Santhan and Perarivalan. "For the past two years, these people have been under stress but no decision has been taken," he said.

'Cho' S. Ramaswamy, Member of Parliament and Editor of Thuglak, a Tamil weekly, said: "I am not sure whether decisions on clemency petitions can be delayed beyond what amounts to a reasonable period of time. There have been cases where condemned prisoner s have argued that this very delay has subjected them to mental agony. Then the courts may pass strictures, which may lead to a reconsideration of the verdict."

Cho said that in this case "the delay created doubts about the motives of both the Tamil Nadu Government and the Central Government". He pointed out that there had been pleas that Nalini should not be hanged because she had a child and there were pleas o n behalf of the other three too. "The very approach and attitude of the advocates of compassion towards these killers is sickening," he said.

According to Cho, the attitude of the MDMK and the PMK, important partners in the National Democratic Alliance (NDA), which rules at the Centre, and of George Fernandes, accused of being an LTTE sympathiser, made him wonder whether the Centre was under pressure to recommend to the President the acceptance of the clemency petitions. Karunanidhi also would not like to be seen as a Chief Minister whose Council of Ministers recommended the execution of these Tamils. "So he would like the Centre to accept t he responsibility," Cho added.

This, he said, was "a very disturbing trend" because one would have expected the Centre and the State to say straightaway that these killers deserved no mercy. "I suspect that there is a conspiracy among the Centre, the State and the sympathisers of the LTTE to delay a decision on the matter as long as possible so that it will become a non-issue," he said.

The MDMK, the PMK and certain human rights organisations said that they were against death sentences in general. Cho asked, "Why did they not agitate against the death sentence when 'auto' Shanker (of Chennai, who was sentenced to death for several murde rs) was hanged? Do they want mercy to be shown to these (four) persons because they are politically opposed to the Congress?" He appreciated Vazhappadi Ramamurthi as one politician who took "a courageous and sensible stance on this issue".