“Valmiki was a dacoit. He robbed to succor the poor. Later on, this Valmiki wrote Ramayana. This could happen to any one”

                                                                       ……Justice V.R.Krishna Iyer

               To abolish or retain death penalty is a long time debated issue in many countries across the globe. Will the issue be settled, at least in the 21st century ponder Human Rights Activist. 

           Dr. A.P.J. Abdul Kalam, during his tenure as the President of India had favoured a rethinking on the issue of Death Penalty. Justice R.C. Lahoti, the then Chief Justice of the Supreme Court and Mr. Bharadwaj, the then Union Minister of Law had separately favoured retaining Death Penalty. The Supreme Court had also opined that in cases pertaining to Death Penalty, the President shall accept the collective decision of the Cabinet. In Indian prisons, presently there are about 50 convicts facing death penalty. 

           In the year 1945, the then Travancore State had abolished death sentence. In reply to a discussion in the Lok Sabha on 25.11.1956, on a private member bill seeking to admonish death penalty, the then Minister in Charge Mr. H.V.Badaskar, has submitted that the time is not ripe to abolish death penalty. The first ever democratically elected Communist Government came to power in Kerala, in 1957. EMS Namboodaribad was the Chief Minister and Justice V.R. Kirshna Iyer was the Home Minister. C.A. Balan, a convict facing death penalty had submitted a mercy petition to the President and the Governor. He also submitted a similar petition to the Home Minister Justice Krishna Iyer. In spite of the mercy petitions being rejected by the President and the Governor, after a long battle, Justice V.R. Krishna Iyer succeeded in securing the release of C.A.Balan. Similarly, he succeeded in securing the release of Etika Annama, a Women convict, facing death sentence. Then Justice V.R.Krishna Iyer quoted Mahatma Gandhi’s saying, “No power has a right to pluck the life gifted by God”.

           Dr. Radhakrishnan, who was the President during 1962-67 was against awarding Death Sentence. During his tenure, many Courts had awarded Death Sentence and appeals against such convictions were also dismissed by the Supreme Court. Several mercy petitions were submitted to him. Dr.Radhakrishnan did not reject the mercy petitions and also did not act on it. Consequently, the sentence could not be executed. Citing pendency of many executions, the Home Ministry requested the intervention of Jawaharlal Nehru, the then Prime Minister. Jawaharlal Nehru even deputed a special messenger to Dr.Radhakrishnan with a request to turn down the mercy petitions. Dr.Radhakrishnan refused to do so. In the resultant no executions could be carried out during the Presidentship of Dr.Radhakrishnan. 

           The Law Commission in its report submitted during 1967, opined the need to relax Death Sentence. Between 1953 and 1963, nearly 142 persons were hanged to death in India. This enormity necessitated passing an amendment the year 1973, by which a Hon’ble Judge while awarding Death Sentence, shall elaborately state the reasons necessitating awarding Capital punishment.

           The Indian Independence movement witnessed the hanging of martyrs, Bhagat Singh, Sugadev and Rajaguru. In 1947, death sentence was awarded on Rajagopalan and Kasirajan of Kulasekarapattinam on charges of killing a British Sergeant.  After independence they were released. Captain Nawas Khan and Captain Dhillon of leading the Indian National Army of Nethaji were awarded death sentence. The Telegana movement witnessed death sentence being imposed on 11 persons. Jawaharlal Nehru vehemently opposed the hanging of Malaysia Ganapathy. When death penalty was imposed on 6 Communists in 1946 at Kovai Chinniampalayam and when Naxalite leader Nagabhushan Patnaik and Kaliaperumal and Thyagu in Tamilnadu were awarded Death sentence, Tamilnadu rose against Death Penalty. 

           Although there is literary evidence on prevalence of Death sentence in the Ancient World, there is no reference about Death penalty in Ancient India. Fahien, the Chinese Buddhist Traveler, of the 5th Century has recorded the non-existence of Death Penalty in India. A similar note is recorded in the 8th Century by the Korean Traveler Hoiso.

           Veerapandiya Kattabomman was hanged to Death by the British, but one Gurusamy, a legal heir of Kattabomman down the centuries, and who went upto the gallows on three occasion was saved at the last movement, by the untiring efforts of VaiKo and this author. This happened 23 years before. The corridors of the Hon’ble High Court, Madras was full of suspense. The final verdict was to be pronounced by the High Court of Madras on September 27, 1984, on an issue which was pending before it for the last 7 years. If the verdict is to go against the petitioner, the Country will be loosing the last legal heir of Veerapandiya Kattbomman, the front runner of Indian Independence. If the verdict favors the petitioner, Gurusamy, it opens a new chapter in the Indian Judicial history. 

           VaiKo was interned under MISA at Palayamkottai Prison, in 1977 during the days of Emergency. It was at this time he say Gurusamy, a lineal descendant of Veerapandiya Kattaboman. Gurusamy was convicted for having murdered his father-in-law on a property dispute and was awarded Capital Punishment. He was waiting to be hanged. VaiKo was attracted at Gurusamy’s multifaceted acts, performing Silambam, dancing Devarattam and singing native songs on Jakamma. VaiKo resolved to save Gurusamy from the gallows. Gurusamy was convicted to death, by the Sessions Court, Tirunelveli and the sentence was also confirmed by the Madras High Court. His case under C.C.No.87/1976, taken on Special Leave to the Supreme Court was also dismissed and death was imminent. Earlier, his death sentence was deferred on three occasions, one on 15th June 1977, another on 15th September, 1981 and the last one on 21st June 1984. All his mercy petitions were also turned down by the Government. It was at this juncture VaiKo intervened. After taking oath as a member of the Rajya Sabha, VaiKo submitted a memorandum containing signatures of 38 MPs, to the then President Sanjeevi Reddy and pleaded the case of Gurusamy. President Sanjeevi Reddy, had heard about Veerapandiya Kattabooman. VaiKo recollected the event, of 1969, when Sanjeevi Reddy unveiled the statue of Veerapandiya Kattabooman, erected by Thespian Sivaji Ganesan at Kayattar, in Tirunelveli District. Vaiko pointed out that Gurusamy is a lineal descendant of Veerapandiya Kattabooman. Finally, the President was inclined to temporarily stay the execution.  But it was only a temporary relief. The mercy petition was also finally rejected by the President and the date for execution was fixed for 15th September, 1981. VaiKo was unrelenting. This time he got the signatures of 50 MPs and submitted another petition to the President on 8th September, 1981. VaiKo was directed to submit the petition to the Minister of State, Home Department, Mr.Venka Subbiah. The then Home Secretary convinced the Home Minister, that the power to suspend the sentence is within their ambit. With only five days to execution, the sentence was temporarily withheld, but not rescinded.

           In the meantime, the Union Home Ministry, directed the Tamilnadu Government to ascertain the veracity of the statement that, Gurusamy is the lineal descendant of Veerapandiya Kattabomman. This exercise took nearly a year to complete and the death sentence was kept in abeyance till then. In the interregnum a representation to commute the death sentence to life was also made. All this was again short lived. Zail Singh succeeded Sanjeeva Reddy as the President. He rejected the clemency petition on the ground that, no leniency could be showered on a convict, even if he happened to be the descendant of freedom fighter. In was at this juncture, Justice Chinnappa Reddy sitting in the Supreme Court, observed in a case that, long incarnation could be a justifiable reason to condone the death sentence. Taking a cue from this judgement of Justice Chinnappa Reddy, and point to the fact that the convict had already been in prison for five long years, another representation was made to the President of India.

           On 14th June 1984 a notification fixing the date of execution as 21st June 1984 was served on Gurusamy. Kutty (alias) Shanmuga Chidambaram conveyed this message from Tirunelveli to VaiKo who was then in Chennai. VaiKo immediately called Senior Lawyer N.T.Vannamamalai at the dead of night and we sought his opinion on further course of action. It was decided to instruct Gurusamy to address telegrams to the Supreme Court at Delhi and the High Court at Madras pleading clemency. Accordingly, separate telegrams were issued and the telegram itself was pleaded to be construed as petition. By then it was only two or three days to execution. All avenues seemed to have been completely shut. As a last ditch battle I decided to approach Justice Chandrukkar, who had just then assumed office as the Chief Justice of Madras High Court. I moved the Chief Justice at his abode in the Chepauk Guest House. Having lost all hope I pleaded with the Chief Justice, to consider the Telegram sent by Gurusamy from Palayamkottai Prison to the Registrar of Madras High Court, and sought his intervention. The Chief Justice heard me in detail for 15 minutes and pondered whether there is any provision for intervention and lastly observed, that if there is any provision, let the convict enjoy the benefit of the provision.  I retreated satisfactorily. 

           Thereafter, the Registrar allowed the petition to be numbered and the case was mentioned at 10.30 a.m. before Hon’ble Justice Ramasamy and Hon’ble Justice David Annusamy and got their permission to move the petition by 2.30 pm, after lunch session. Senior Lawyer N.T.Vannamamalai moved the petition and he was assisted by Advocate I.Subramaniam. The Public Prosecutor Padmini Jesudurai, who was later elevated as a Judge, was called. After arguments, an interim stay on execution was ordered. The Hon’ble Judges directed the Public Prosecutor to convey the order to the Government of Tamilnadu, District Collector of Tirunelveli and Palayamkottai Prison Superintendent. By 4.30 pm, the Public Prosecutor informed the Court that the Government had been apprised of the order of stay. The Court recorded the statement made by the Public Prosecutor. By then it was barely 24 hours to execution. After 27 years, even to-day I wonder, as to how this mighty task was accomplished. I feel elated and convinced that untiring resolve and zeal will accomplish even the mightiest. 

           This case being a Death penalty case, many friends, reports, activist and friends in the film fraternity enquired about the case. Notably, Pala.Nedumaran, Era.Sezhiyan, CPM leader A.Nallasivan M.P., CPI leader P.Manickam, Azhagirisamy, Sri Lankan Tamil leader A.Amirthalingam, MP Yogeswaran, Barrister Karikalan, Writers like Ki. Rajanarayanan, Sundara Ramasamy, noted Journalist Anitha Pratap called me. Other than these personalities, Pirabhakaran, leader of LTTE, Anton Balasingam, Baby Subramanian (Illankumaran) also evinced keen interest in this matter. Later eminent Lawyer Karg, appeared before the Supreme Court and obtained interim stay. Thereafter, the petition was withdrawn. Even stage of the case was keenly watched. When the interim order was pronounced, several High Court Lawyers lauded VaiKo for his untiring effort. The Hindu wrote in detail on this case. Eminent Lawyer Govind Swaminathan, in conversation with N.T.Vanamamalai, termed it as a milestone in the judicial history. 

           This Author, then shouldered the responsibility in moving a Public Interest Litigation before the Madras High Court. The following four facts were pleaded in the affidavit to warrant Death Penalty. They are:

1.        Death Penalty could be awarded only in the rarest of rare cases wherein there is no contrary opinion to challenge the order.

2.        A profession killer living in a society addicted to high morals values and decorum is bound to be condemned to Death.

3.        In cases where there is no one to stand by the victim, death penalty can be awarded.

4.        In cases where, life imprisonment is considered as totally insufficient, death penalty can be awarded.

           Other than these statements in the affidavit, I enclosed a Conduct Certificate on Gurusamy, submitted by 150 prisoners to the Palayamkottai Jailor. Unperturbed by all these happenings, Gurusamy was passing his days with passion and grief. He noted that, in the event of his execution, his body should be handed over to VaiKo. The day came and the final verdict was read by Justice Ramasamy and Justice David Annusamy. It read, “if even professional killers could be absolved of Death Penalty, nothing is wrong in securing a descendant of a Freedom fighter from the gallows. The Death Sentence is set aside and commuted into life imprisonment.”

           In their Judgment, the Honourable Judges have referred to the Poison Injection case of T.V.Vaitheeswaran versus The State of Tamilnadu (AIR 1983, SC 361), in which the delay of two years caused in execution was construed as infringement of Right conferred under Article 21 of the Constitution of India and the death sentence was commuted. The act of delay by itself was considered as a sufficient cause for condoning the death penalty. The case of Kehar Singh versus The State of Punjab (AIR 1983, SC 465) wherein the inordinate delay caused in executing the Death Sentence by itself was considered as a sufficient cause to decide the fate of execution and the case of Bachan Singh versus The State of Punjab (AIR 1980, SC 898) in which it was observed that death penalty could be imposed only in the rarest of rare cases were also relied on by the Honourable Judge. The Madras High Court, observed that the case of Gurusamy will not fall within the ambit of these judgement. The seven year long battle to save the life of a convict condemned to Death did not go in vain. Gurusamy spent his life imprisonment as a “convict warder” and got released. He lived with his family and died ten years ago near Ottapidaram. 

           If Gurusamy had been executed, his death would have been buried deep in the graves of his forefathers. On the contrary, the case of Gurusamy was unparallel in the Indian judicial history. It is the first case wherein a convict who kissed the gallows, not once, but thrice was finally set free. The case of Gurusamy was followed in the case of Makali Nadar, argued by Mr.P.H.Pandian, in which the accused was saved from death penalty. Even today lawyers arguing before the Courts cite these cases to precedents. 

           The beginning of the 19th Century witnessed European thinkers and philosophers arguing against capital punishment. Arthur Goisler, the Hungarian Philosopher was a notable fighter against capital punishment. He was incarcerated by the Nazis and was condemned to death during the Spanish upraising. He fought against totalitarianism. In his novel, “Darkness in Noon” he revealed the ideals of Stalin to the World. Through his writings he provoked the thoughts in many. Nearly 2/3rd of the Nations have abrogated Death Penalty. 135 Countries have completely wiped out Death Penalty from their Statutes.  When Saddam Hussain and Bhutto were hanged, world wide there was a huge uproar. Countries like China, Iran, Iraq, Pakistan, Sudan and America are firm on death penalty. Even in America many states have relaxed the conditions. The Asian and African countries are adamant in executing death sentence. Singapore is the first in the race. In Singapore, a persons condemned to death is executed on any one Friday, even without any prior intimation to him. The news about the death will be revealed to the World only after the execution is done. The case of Dochi a 21 year old Nigerian footballer is a fit case of executing death penalty in Singapore. Dochi, was eager to play in Dubai. He was advised to go to Islamabad. Even there his dream did not fulfill. Having lost all his money he stayed in a Church, where a person named Smith advised him to reach Nigeria via Singapore. He offered him the Air Ticket and gave him few tablets for being handed over to a person by name Malachi, in Singapore. Dochi landed in Singapore and was waiting for the person in the Airport, but was nabbed by the Police. He was imprisoned and after two year trial was hanged to death. 

           In England, Lord Duncan, introduced the Bill abolishing Death penalty before the House of Lords and got Death penalty abolished. Even the killers of Lord Mountbatten were not awarded Death sentence by the British Government. South Africa abolished Death sentence in 1995. In 2007 the General Council of United Nations passed a referendum against Death penalty. 52 Countries, including America, India and China opposed the Bill, while 99 Countries supported the referendum. In 18 Countries, Death Penalty is imposed only for War Crimes. In 27 Countries it is imposed only for terrorist activities. In 1976 Canada abolished Death Penalty. Prior to abolishing Death Penalty, criminal acts warranting Death Penalty was 3.09 per cent, but after abolishing Death Penalty, it dropped to 2.74 per cent in 1983. 

           As of 1985, death penalty is imposed for offences involving bribery on world basis in Soviet Union, acts of espionage in China, for prostitution in China and Gyana, for economical offences in Iraq, for rape in China, Egypt, Saudi Arabia, Syria, Thailand, Tunisia, for dacoity and for handling dangerous weapons in China, Nigeria, Saudi Arabia, Syria, Uganda, for drug trafficking in Iran, Malaysia, Thailand and China.

           There is an argument against awarding Death penalty to youngsters. The Conference on Law held in Geneva in 1949, passed a resolution banning Death Penalty to persons below 18 years. Nearly 74 Countries world wide have accepted this norm. The conference held in the United State of America, excluded persons about 70 years of age from Death penalty. Even then one Mohamed Thaga a 76 year old Sudan Leader and Pyodar Pederanko a person aged 78 years were repatriated to Soviet Russia and hanged to Death for political reasons. There is a world wide norm not to hang a mentally retarded person and pregnant women. 

               In India death penalty is executed either by hanging or by shooting. Under the Indian Penal Code murder, attempt to murder, dacoity, dacoity with deadly weapons, rebellion against the State, adducing false evidence knowing well that the same will result in awarding death sentence to the accused are considered to be offences punishable with Death sentence. The Indian Armed Forces Act 1950, Air Forces Act 1950 and the Indian Naval Act 1956, provides death penalty to soldiers committing an offence. The Act of 1987 provides for death penalty. In 1967 the Drafting Committee on Criminal Laws recommended remission of death sentence to persons below 18 years of age. The District Sessions Courts, Special Courts, High Court are the Courts in India awarding Death Sentence. At the same time power to grant clemency is vested with the President and the State Governor.

           S.A.R.Geelani, Afsal Guru, and three persons convicted in Rajiv Gandhi Assassination case are facing the gallows. Commenting on the death sentence imposed on Afsal Guru, the then Chief Minister of Jammu and Kashmir, Mr. Gulam Nabi Azad observed that, the verdict offends the sentiments of Kashmir people, and if executed will scuttle the ongoing peace talks. Writer Arundhati Roy also expressed a similar view. Challenging the sentence, Afsal’s wife has already during 2006 submitted a memorandum to the Home Department.

           Instead of taking a confrontationist view it is necessary to take a constructive view on the issue of Death penalty. The argument that death penalty is a deterrent against crime cannot be accepted. Even after hanging of Nathuram Godse, the killers of Mahatma Gandhi, Indira Gandhi and then Rajiv Gandhi have been assassinated. In 1980 Billa and Ranga were hanged to death for having murdered Geetha Chopra and Sanjay Chopra. Similarly, Makbul Bhatt was hanged to death in 1984 for his disruptive activites. All these would only prove that, death sentence does not have any deterrent effect. The offences continue irrespective of harshness of the punishments. Auto Sankar and now Afsal Guru, the offence continues to occur.    

           World over there are about 1,252 persons facing the gallows. India alone constitutes about 389 persons. Acting on the General Council resolution of the United Nations, during 2007 Amnesty International launched a campaign in India headed by Justice Krishna Iyer and submitted a letter to the Prime Minister Dr.Manmohan Singh. The said letter was signed by Justice Rajendra Sachar, Sethi, Admiral L.Ramdoss, Mohini Giri, Upendra Bakshi, Askar Ali Engineer, Aruna Roy, Ashis Nandhi, Anandh Pattavarthan. The Supreme Court has observed that convicts facing Life Imprisonment and Death Penalty are entitled to send petition seeking remission only after a period of 14 years. Even if such a petition is filed, in the absence of effective disposal of such petitions, justice is always delayed.

           The Indian Criminal justice delivery system has few amusing notes. Three persons were accused of murder. Their cases were heard separately by different judges. One person was given death sentence. Another person was sentenced to life. The other person’s clemency was considered favourably by the President and he survived. In a judgment delivered by the Supreme Court in 1980, it observed, “considering the statement of witnesses while delivering judgement alone is not enough, its future repercussions should also be taken note of. Capital punishment should be given only in the rarest of rare cases.” The commutation of death sentence into life imprisonment by the Supreme Court to Periya Karuppan a convict interned in Trichy Prison and to Avinasi a convict incarcerated in Coimbatore Prison are worth mentioning. In the state of Rajasthan, when capital punishment was imposed publically on several persons (Public Capital Punishment) in a case relating to sabotage, the Attorney General challenged the same before the Supreme Court in 1985. The Supreme Court while granting interim stay of the punishment, observed that, “a crime against humanity cannot be condoned with a punishment sans humanity”.

           In 1977, Jayaprakash Narayanan, while participating in a Conference on abolition of Death Penalty, opposed death penalty. During, March 1985 a discussion on Death Penalty took place in the Indian Parliament. The then Prime Minister Mrs.Indira Gandhi personally favoured abolition of Death penalty. But, the then Home Minister, declared that the Government is yet to decide on abolishing Death penalty. On 28.4.1989 a bill seeking abolition of draconian punishments like death penalty was tabled in the Indian Parliament. 

           In an another Judgement the Supreme Court observed that, “when Article 72 and 161 are wrong interpreted or wrongly applied, then the Court has powers to rectify the same. While, granting remission or clemency, the cascading effect it would have on the society and condition of the affected families should also be looked into.”

           The Indian Constitution is based on the British Constitution. The Indian Penal Code is also a product of the British Law. An offence under Section 302 of the code warrants death sentence. But, a similar law is not in existence in English. But, it is unfortunate that in India where democracy is the rule, Death penalty is still retained in the Code. Life has become a question mark for those who are under the shadows of the gallows. If they will fight tirelessly till the end, like Gurusamy, they came surely escape the gallows. The three persons condemned in the Rajiv Gandhi Assassination case and the persons convicted in the parliament attack case are facing death penalty. Killing persons by hanging does not serve any purpose to the society or to humanity. Humanity which is progressing towards civilization should ponder over death sentence.

           In the Rajiv Gandhi assassination case 41 persons were charge sheeted. 12 persons died even before Trial. 26 persons were tried and now three persons, viz., Perarivalan, Murugan and Santhan are facing death sentence. Their petition for clemency has also been turned down by the President and now notification fixing date for the execution has also been issued. These persons are there in prison for the past 20 years. Considering their long incarceration and suffering they could well be released, for the same would be treated as punishment for them. Any civilized society will certainly welcome the move.

           Even if it is true that persons sentenced to death have committed heinous crimes, yet all of them are eager to sail in life. Human life cannot wither like a flower. Killing a person, taking revenge are ancient British practice. This is similar to the Anglo Saracenic punishments like amputating, letting into fire and pushing into boiling oil. A drastic relook on awarding death sentence is the need of the hour. The resolution of the United Nations urging countries to withdraw death penalty is a pointer in this direction. Lok Nayak Jayaprakash Narayanan was of the firm view, that no law or no punishment is eternal in the history of mankind, a law will be in force only as long as it upholds human sanctity and dignity.

           When death sentence could exist in statute books, the question of pardon or clemency becomes irrelevant. It looses its value and importance. In many cases several innocents have been convicted. Any act and effect is a result of circumstance. But the circumstance keep changing. The change may come belatedly or in seconds. What is termed right to-day will become wrong tomorrow. From Ape to man, mankind has traversed long. Man has done wonders, he has achieved impossible. The achievements should continue and mankind needs to traverse further. Abolishing Death penalty is necessary to pave way for a more civilized society.  Activist against death penalty are continuing their campaign against death penalty. There is a need for global support against death penalty.  No one is born as a criminal. Several contributing factors force a man to commit an offence. When viewed in the backdrop of Societal, Political and Anthropological consideration, the necessity to abolish death penalty assumes more significance. 

           Eye for an eye, Tooth for a tooth was ancient Criminal jurisprudence. Punishments on par with the offence were the order of the day then. But such an order is no more appreciable. Harsh punishments are no deterrent against crime.  Imprisonment is a way towards redeeming one’s mistake. Sentencing a person to death will in no way help at reducing crime. Countries which had abolished death sentence have registered fall in crime rate. On the other hand countries where death sentence exist have registered higher crime rates. As Justice V.R.Krishna Iyer points out, “an offender should be given an opportunity to correct himself, for which his life should not be taken away.”