Sympathy factors

Print edition : December 11, 1999

Pro-LTTE groups use the issue of death penalty to step up propaganda in Tamil Nadu even as the clemency petitions of four persons sentenced to death in the Rajiv Gandhi assassination case await a decision.

IN the guise of pleading against capital punishment, specifically the death sentence awarded by the Supreme Court to Nalini, Murugan, Santhan and Perarivalan in the Rajiv Gandhi assassination case, pro-Liberation Tigers of Tamil Eelam (LTTE) groups in Ta mil Nadu have again become active. These assorted organisations had kept a low profile after Rajiv Gandhi's assassination by an LTTE member at Sriperumbudur, near Chennai, on May 21, 1991, as revulsion raged against the action. The Centre proscribed the LTTE the following year. The Supreme Court confirmed the death sentence against the four persons in May and October this year. Among the groups that have hitched on to the bandwagon of the campaign against capital punishment, none, barring the People's U nion for Civil Liberties (PUCL), had taken a stand against the death penalty in the past.

Those who suddenly found their voice against the death penalty included top Tamil writers, who demanded on November 27 that "an eye for an eye, murder for murder, cannot be accepted in today's civilised society". Under the banner of "Tamil Writers Agains t Capital Punishment", writers such as Sundara Ramaswamy, Indira Parthasarathy, Ki. Rajanarayanan, Rajam Krishnan, Mu. Metha, Ponneelan, Kovai Gnani, Sirpi Balasubramaniam, Inquilab, and Pa. Jeyaprakasam said that there was a worldwide campaign against c apital punishment and the time had come to abolish the death penalty in India. S.V. Rajadurai, a writer who belongs to PUCL, said that the campaign should cover not only Nalini, Murugan, Santhan and Perarivalan but all those who had been sentenced to dea th.

A number of organisations came together under the banner "Abolition of death penalty - Rally for humaneness" and organised a rally in Chennai on November 30. The explicit purpose of the rally was to appeal to Tamil Nadu Chief Minister M. Karunanidhi to r ecommend (to the Governor) the commutation of the death sentences on Nalini and three others. The organisations included splinter groups of the Dravidar Kazhagam (D.K.) such as the Periyar Dravidar Kazhagam and the Tamil Nadu Dravidar Kazhagam, the Tamil Scholars' Association, the Tamil Tamilar Movement, the Tamil Nadu Marxist-Leninist Party, the Association for Humaneness, the PUCL and the Tamil Eelam Supporting Organisation. The rally was led by P. Nedumaran, a pro-LTTE leader and president of the Tam il Nationalist Party, and Panrutti S. Ramachandran, founder of the People's Liberal Party.

Thousands of people including women, took part in the rally. Many men in the rally wore black shirts, which D.K. volunteers wear. Several youth had a black hood pulled over their faces to signify a prisoner about to be hanged. They carried pictures of th e condemned prisoners and raised slogans such as "They are our people, their lives are our lives", "They are Tamilians", "Let capital punishment die, let humaneness flower", and "Death penalty is legal murder by the government". The processionists praise d Karunanidhi's statement that he was generally against capital punishment.

At the conclusion of the rally, Nedumaran submitted a memorandum to Karunanidhi. He said that 57 countries had abolished capital punishment and in 15 countries it was used only in the case of war crimes. Although 26 countries still had it on their statut e books, they did not invoke the rule. This only proved that the death penalty was "inhuman", Nedumaran argued. He said that the campaign had gathered steam after the trial court had "in an unprecedented judgment" sentenced to death all the 26 accused in the Rajiv Gandhi case. (Nedumaran had sent a memorandum to the officials concerned against the death sentence awarded to Govindasamy, who is now in the Central Prison in Coimbatore, for murdering a family of five in Erode district. He urged Karunanidhi to initiate efforts to get the death penalty scrapped.

The rallyists directed their plea to Karunanidhi as the Madras High Court has ruled that as per the Constitution the Governor can act on commuting a death sentence only on the advice of the Council of Ministers. (The High Court set aside Governor Fathima Beevi's order rejecting the mercy petitions of the four prisoners. Justice K. Govindarajan ruled that the Governor's order cannot be sustained as "the procedure of getting advice from the Council of Ministers by the Governor" under Article 161 of the Co nstitution was "not followed". The judge maintained that "it is for the first respondent (the Governor) to pass a fresh order" on the clemency petitions of the four "after getting the advice of the Council of Ministers". )

On December 2, when reporters asked Karunanidhi whether a positive decision would be taken on the clemency petitions, he replied that it was the President who had to take a decision. On the High Court's decision that the Council of Ministers should tende r its advice, he said the Tamil Nadu Government was consulting legal opinion on the order.

EVEN as the State Government was caught in a cleft stick on this politically sensitive issue, Congress(I) president Sonia Gandhi, in a private meeting with President K.R. Narayanan, conveyed her family's "feelings" that the life of Nalini should be spare d because she is the mother of a child. (Nalini married Murugan after the assassination, and a child was born to them in prison.) Sonia Gandhi said: "It is my personal feeling, keeping the need of a mother for a child."

Sonia Gandhi first spoke about her meeting with Narayanan to Mohini Giri, Chairperson of the Guild of Service, when Mohini Giri met her and pleaded Nalini's case. Mohini Giri had petitioned Narayanan for the commutation of the death sentences."Mrs. Gandh i told me that she had already conveyed to the President to commute the death sentence against Nalini and had no objection to our filing a mercy petition," Mohini Giri said.

Sonia Gandhi's position drew sharp remarks from some present and former leaders of the Congress(I). M.S. Bitta, former president of the Indian Youth Congress and chairman of the All-India Anti-Terrorism Front, is firmly against the commutation of the dea th sentence awarded to Nalini. Her punishment should "act as a deterrent for others", he said. If the sentence was commuted, it would encourage people pursuing the "politics of elimination" to use women as suicide bombers and target more leaders, Bitta s aid.

P. Nedumaran, president of the Tamil Nationalist Party, leading a rally in Chennai on November 30 against the death sentences awarded to Rajiv Gandhi's killers.-N. BALAJI

G.K. Moopanar, president of the Tamil Maanila Congress (TMC), said that the pleas for the commutation of the death sentences were as horrendous as the murder of Rajiv Gandhi.

Vazhappadi K. Ramamurthi, president of the Tamilaga Rajiv Congress (TRC), said that Sonia Gandhi's stand showed her "immaturity" and that she had made the plea to gain "cheap publicity". Her stand hurt the feelings of Rajiv Gandhi loyalists, he said.

THE four condemned prisoners had sent separate clemency petitions to the Governor on October 17. The Governor rejected the petitions on October 27. They filed writ petitions in the High Court stating that the Governor had rejected the petitions in a "has ty manner", without seeking the advice of the Council of Ministers. This was "illegal, arbitrary and violative of the Constitution," they argued. (Frontline, November 26, 1999).

Senior advocate K. Chandru, who appeared for the petitioners, said that the Governor could exercise her power under Article 161 only after getting the advice of the Council of Ministers. Even then, the Governor was bound by the advice of the Council of M inisters, and so he/she had no discretionary powers. The power to grant clemency was a sovereign power, which lay with the people. In a republican system of government, the Governor was a figurehead and the real power lay with the elected Ministers. Ther efore, Article 161 could be exercised only by the Council of Ministers in the name of the Governor, Chandru argued.

Additional Advocate-General T.R. Rajagopalan, who appeared for the State, argued that clemency petitions (filed under Article 161) were not a subject matter in Schedule No.II of the Tamil Nadu Government Business Rules. Schedule No.II contemplates cases that could be brought up before the Council of Ministers. Rajagopalan said that on this basis and also referring to Rule 35(1)(a) and Rule 35(1)(b), the mercy petitions with all the materials had been forwarded by the Chief Minister, who was also in char ge of the Home Department, to the Governor. So the question of getting further advice from the Council of Ministers would not arise when the Business Rules did not contemplate such a procedure, he submitted.

Chandru said that if the Government had been forwarding clemency petitions since 1947 to the Governor without tendering the advice of the Council of Ministers, this was done contrary to the spirit of Article 161. Even if it was a practice adopted by the State as understood by it in terms of its Business Rules, such a practice was unconstitutional. Chandru referred to Rajagopalan's argument that the Council of Ministers had framed the Business Rules and it had willingly empowered the Governor to decide o n clemency petitions. According to Chandru, the Council of Ministers cannot surrender its authority or power of giving advice under Article 161 and the Business Rules cannot run contrary to the Constitution.

In his order, Justice Govindarajan referred to several Supreme Court verdicts that had held that the Governor had no discretionary powers under Article 161. He quoted the verdict in Kehar Singh v. Union of India, which stated: "...the President's power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review."

He quoted from the order in Maru Ram v. the Union of India, which said: "The State Government, whether the Governor likes it or not, can advise and act under Article 161, the Governor being bound by that advice." The apex court said: "It is not op en either to the President or the Governor to take independent decisions or direct release or refuse release of any one of their own choice...The constitutional conclusion is that the Governor is but a shorthand expression for the State Government and th e President is an abbreviation for the Central Government." In State of Punjab v. Joginder Singh, the Supreme Court had insisted on the requirement of the President and the Governor getting the advice from the Council of Ministers while exercising powers under Articles 72 and 161. In U.P.P.S.C. v. Sureshchandra Tewari, the Supreme Court said: "Neither the President nor the Governor is to exercise the executive functions personally."

Merely forwarding the material to the Governor could not be construed as giving advice, the Judge said. He supported this view by quoting from S.R. Bommai v. Union of India, in which the apex court had said: "The material placed before the Preside nt by the Minister/Council of Ministers does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice."

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