Date: 16 October 2011
Death sentence is judicial murder, says former Supreme Court judge K.T. Thomas, who headed the bench that pronounced death punishment to three conspirators in Rajiv Gandhi's assassination.
"Death sentence is no punishment," Thomas, 74, said. "It is a judicial murder committed with the protection of the society."
According to Thomas, world opinion is turning against the death penalty with more and more countries abolishing it.
"In India too the debate is active among rights activists, judicial circles and civil society," Thomas said. "But ultimately, it is a political decision."
If he was against the death sentence, why did he agree to awarding death penalty to the threeRajiv killers -- Murugan, Santhan and Perarivalan?
"Because I took oath to discharge my duties as per the Constitution and the prevailing laws," replied the former judge. "Whatever extreme may be my individual views, as a judge, I had to function as per the existing laws."
He said punishment had a three-fold objective: reformation, deterrence and retribution. The rule of retribution -- a tooth for a tooth, an eye for an eye -- is increasingly considered uncivilised.
"Then is the case of reformation. If a person is eliminated where is the opportunity for reformation?" he said.
Experience and studies have proved that death punishment have not worked for deterrence too, Thomas said.
He recalled the experience of erstwhile princely states of Cochin and Travancore where death penalty was abolished in 1940 but restored when they became part of the Indian republic in 1950.
Records show that there were a higher number of murders in the 1950s than in the 1940s when there was no capital punishment. "So the theory of deterrence is not valid in many places and periods", he said.
He said the simple test for death sentence was visualising our own children in the situation. "Our children commit mistakes and we want to reform them through punishments. But do we want to kill them?"
In 1999, the three-member supreme court bench comprising Thomas, Justice D.P. Wadwah and Justice S.S.M .Quadri had awarded death punishment to Murugan, Santhan, Perarivalan and Murugan's wife Nalini in the Rajiv Gandhi assassination case.
Thomas had dissented on death punishment to Nalini while the other two judges were for capital punishment for all four.
Nalini's sentence was commuted to life imprisonment as President Pratibha Patil accepted her mercy petition. The petition was recommended by Rajiv's widow and Congress president Sonia Gandhi.
"I found Nalini was acting like a robot and did not know till the last hour that she was to kill Rajiv Gandhi at Sriperumbudur in Tamil Nadu on 21st May, 1991." Thomas said.
If both Murugan and Nalini were to be killed their child would have been an "orphan made by law", he added.
With the President rejecting the mercy petition of the trio, they were to be hanged September 8 this year. However, the Madras High Court September 1 stayed their execution for eight weeks. The Supreme Court will hear a plea to transfer the petition on October 19 .
"It was my misfortune to have presided over the bench which gave the death penalty to the four accused. But I had to discharge my duties," Thomas said about the 1999 verdict.
"The debate over the suitability and ethics of the death sentence is picking up in India," he said. The Supreme Court had deliberated the issue during the Bachan Singh case in 1983 and directed that death penalty should be awarded only in the 'rarest of the rare cases', he recalled.
Thomas, a practising Christian, had courted controversy recently when he said at a function in Kochi that the "smear campaign" that Rashtriya Swayamsevak Sangh (RSS) was responsible for the assassination of Mahatma Gandhi was "baseless". RSS chief Mohan Bhagwat was also present at the function.
An alumnus of the C.M.S. College, Kottayam, he has often criticized Christian educational institutions "indulging in commercial practises" and has suggested that minorities should give up the special rights given by the Constitution.
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