The stay granted by the Madras high court on the hanging of Rajiv assassination convicts has little “legal force”, point out legal observers.
All the same, the development is not unusual. It is a legal remedy available to the convicts in question to put forth their grievance before the judiciary when they feel that the procedure of law was not properly followed in their case. Such remedy cannot be denied.
An identical issue was raised in the case of Dhananjay Chatterjee, hanged in 2004 for the brutal rape and murder of a 14-year-old schoolgirl in Kolkata, before the Supreme Court after the date of his hanging had been fixed.
Some human rights groups had moved the apex court to challenge Mr Chatterjee’s hanging on the ground of a delay of six years in deciding his mercy petition. The rights groups had also raised the general question of the abolition of the death penalty.
The top court, after seeking an affidavit from the Union government, had given a long hearing to the counsel for the human rights groups as well as the government.
It finally ruled that once the judiciary had given the verdict of death penalty, its role was over in the case. Subsequently, it was entirely for the President to decide whether to grant pardon to the convict, or to allow the judicial verdict of death penalty to prevail. Once President had decided, the matter was between the government and the jail authorities, legal experts pointed out. The judiciary’s role was limited to issuing the “death warrant” for hanging by the judicial magistrate concerned.
This is a law settled by the Supreme Court in several judgments on the issue. The Madras HC has given hearing to the three convicts in the Rajiv Gandhi assassination case as it is a basic principle of law that when any person comes up with a plea making a “prima facie” case against the authorities for “inappropriate” procedure of law, the court can’t shut the doors on the pleading party.
The Supreme Court has said in several judgments that the judiciary has neither any power to regulate the process of mercy petition, nor to commute it and convert it into life imprisonment. Under the Constitution, this power vests exclusively with the President.
When the Supreme Court does not have any power to intervene in the matter the of death sentence after it has give the final verdict, there is no question of interference by any high court.
In the light of the law laid down by the apex court, the Madras HC order was merely a remedial exercise to seek a response from the government why it had delayed the issue so long.