Window of opportunity for Rajiv killers

By V Gangadharan, G Saravanan & V Narayana Murthi

Published in The New Indian Express, Chennai on August 28, 2011:

Source: http://expressbuzz.com/states/tamilnadu/window-of-opportunity-for-rajiv-killers/308299.html

CHENNAI/VELLORE:  The power of the governor to grant pardon is absolute and will not be affected by the rejection of an earlier commutation petition by the President,  said national president of People’s Union for Civil Liberties (PUCL) V Suresh.

Echoing Suresh’s view, G Kurinji, member of the city-based Forum Against War Crimes and Genocide and vice-president of PUCL, said, “If the State government takes a decision to effect the commutation, they could do the same with a resolution in the Council of Ministers and it needs to be sent or communicated to the Governor for action.”

Speaking to Express on his organisation’s clemency petition to the Governor and Chief Minister J Jayalalithaa on behalf of Santhan, Murugan and Perarivalan, Suresh said that repeated commutation petitions are permissible notwithstanding previous rejections of such pleas.

Article 161 of the Constitution, he said, is in the nature of a residuary sovereign power which does not get extinguished on the rejection of a clemency petition.

Kurunji said, “Though the President of India dismissed the mercy petitions of Santhan, Murugan and Perarivalan, who face death by hanging on September 9, the State government, which is vested with clemency powers under sections 54 and 55 A of the Indian Penal Code (IPC), sections 432(a) and 433(7) of the Code of Criminal procedure (CrPC) and Article 161 of the Constitution of India, can exercise its exclusive power and commute their death penalties into life imprisonment.”

"Since the Tamil Nadu Government had exercised its power in the past and commuted death sentences of four people in different occasions, we feel that there would not be any legal hurdle to save the three Tamils from the gallows," Kurinji said.

It may be noted that death sentences of four persons, Thiyagarajan alias Thiyagu, Lenin alias Arangasamy, Gurumuthy and Kaliyaperumal, were commuted to life sentences on different occasions in the past by the State government.

A senior prison official  in Vellore said about 72 people have escaped death penalty by using the legal and political options.

In 1998, two convicts in Andhra Pradesh - Vishnuvardhan and Chellapati Rao  - sentenced to death were spared in the last minute when there was no response to their second mercy petition to the President. This was used as a reason to appeal and the Supreme Court stopped the execution.

The convicts were involved in a raid on a bus and told passengers they would set it on fire during the robbery attempt. When the robbers pretended to carry out the threat a fire started and 32 people were burnt to death on the bus.  Suresh, citing a decision of the Supreme Court in G  Krishta Goud and J Bhoomaiah v State of Andhra Pradesh. (1976), said that the apex court, in that case held that “the rejection of one clemency petition does not exhaust the power of the President or the Governor. There is nothing to stop them from reconsidering a mercy petition.”

All the three prisoners have been convicted and sentenced to death by the Supreme Court only for offences under the Indian Penal Code.

“They have been acquitted of all charges under the TADA Act. Thus, the sentence is for an offence over which the executive power of the state extends,” he added. Also, the death sentence imposed on Nalini, (the fourth person sentenced to death along with Santhan, Murugan and Perarivalan) was commuted to life by the Government of Tamil Nadu. “This substantiates the fact that that the State government is fully empowered to consider mercy petitions of Santhan, Murugan and Perarivalan.”

The PUCL has also appealed to the Governor and the Chief Minister for an Executive Stay of the hanging pending the final decision of the commutation petition, he informed.