Clearly there are some essential gaps in the repertoire of Justice Thomas. No wonder it is difficult to agree with
about his own verdict in Rajiv Gandhi murder case.Below the original India Today text is in black while the text in dark green is the commentary by your poor Alig.
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."
Your first action is in the right and the second one in the wrong your honour.
According to Thomas, world opinion is turning against the death penalty with more and more countries abolishing it.
We should be shaping the world opinion, your honour, rather than getting shaped by 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."
And you have just sided with the wrong side. Coming back to the world opinion-the dominant opinion in the world is western. West is famous for its material, scientific, military and technological advancement. In military and defense related aspects it might be slightly advisable to listen to the western opinion but not overtly so. What Nazis did to Jewish population is not an example for any body to profit by. Hiroshima and Nagasaki are unanimously regarded as unnecessary aggressions for Japan was already on the verge of surrender. The next western military blunder was in Vietnam. There are not many people who consider US support for Israel as a fair thing. People were relaxed and joyed by Obama election because they thought that he'll reverse the Iraq and Afghanistan blunders. At this moment they have buckled in both of these operations. So even in military field the western expertize does not have the former reliability. And if your honour is aware of current western financial environment we can say the same thing about western wisdom in economic, financial and materialistic progress. West can not be taken as a role model in these matters. That leaves us with science and technology. West is the sole leader in these fields but not unchallenged. India itself is not far behind in any field. Japan is superior in electronics-and japan is not west. Not only China but even Pakistan and now Iran is nuclear capable. So no nuclear hegemony of the west. But even this is a digression. we are talking about moral values. And your honour should be well aware that traditional Indian wisdom is that in such matters east is the leader.
Whether there should be a death penalty or not might be a political decision but all of the input in this aspect has to come from the field of jurisprudence. Your point of departure, your honour, in this context should be completely eastern. And why do you forget that your own faith is eastern. The west has only done bad things to the message of Jesus Christ (AS). Later on, that is in present times, they have abandoned evern rudimentary moral pretensions. And moral posture is the one that is now called for to decide the matter at hand.
If he was against the death sentence, why did he agree to awarding death penalty to the three
Rajiv 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."
This is very honourable attitude, your honour. And you should have continued it to its logical conclusion. Your present sentiments have served only to make the picture obscure. We'll justified in guessing that the counselors of Rajiv Gandhi killers will use your statement to prove that your earlier judgment was in fact wrong.
He said punishment had a three-fold objective: reformation, deterrence and retribution.
May be this is the public and intellectual view on punishment but this is not correct. The sole objective of punishment should be justice. Period. Any attempt to obfuscate this should be taken as an attempt at obstructing the justice and no body should listen to those arguments-including your honour. As a person who is identified with judiciary, and so honourably, your primary concern must be justice. Even after retirement. Politics is a reality but should not deter one from one's commitment. Clemency and mercy are very positive values and these should be left to those who have been assigned those facilities. That seems to be the current arrangement.
The rule of retribution -- a tooth for a tooth, an eye for an eye -- is increasingly considered uncivilised.
By whom? We'll tell you the answer. It is considered uncivilized by the west. Let us remember what M.KGandhi thought of western civilization. He thought that it will be a great idea. Kindly do not reduce it to a joke. Can we also stop worshiping the white skin? It is not very honourable thing. When shall we stop demeaning ourselves? If we copy them then we are likely to get similar results. They have near completely destroyed their institution of family. The social structure exists because of family so the western social structure is a chimera-it does not exist. In the justice department if we look carefully we realize that western society is not a very just society. We'll not go into details. Our hopes were that people like you will enlighten us on these things.
"Then is the case of reformation. If a person is eliminated where is the opportunity for reformation?" he said.
You'll agree that all the points (reformation, deterrence and retribution) might not be valid in every case (even if we assume that these three things are the motive behind punishment). So why insist on it?
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.
You can use sociological data to sharpen your judicial process but this is fraught with difficulties. To begin with the argument does not sound very logical, your honour, that imposition of death penalty for murder has increased the number of murders. We are talking about a very technical matter so nuances might cceep in but this does not seem to be the point where it might occur. The argument is too stark.
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?"
Please do the other thing. Put your-self in the position of the dead. And that you or any body else can not do. If any body proposes that let do to you what was done to Rajiv Gandhi then it is unlikely that you shall agree for that. In fact the idea is very ridiculous. When you are the judge then call of the duty is to detach yourself from both of the parties. To put oneself on the side of the one or the other is a recipe for injustice.
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.
This gesture of Sonia Gandhi, though very honourable one and heart warming, is not part of the process where you are in the picture your honour.
"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.
After Sonia Gandhi's action this is not relevant any more.
If both Murugan and Nalini were to be killed their child would have been an "orphan made by law", he added.
Your honour is not applying clear thinking here. Every criminal will come to the judiciary and claim that his or her punishment be waived for confinement to jail is inconvenient to him or her. Every father would find it legitimate to kill other for law would not like to make his child an orphan.
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.
What can we say your honour? You are muddying the waters.
"The debate over the suitability and ethics of the death sentence is picking up in India," he said.
It is strange that like many you too are aligning himself with the felons. This is not just and this is dangerous. dangerous to the society. You do not know in what position you are putting yourself.
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.
It is true. The judicial system is not perfect-we are very unlikely to be perfect in any foreseeable future. But we must try. But what is unnerving is that the things are moving in the opposite direction. You are aligning yourself with that kind of line of thinking which is likely to sabotage justice. How did we become so muddle headed?
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".
You must be very scared of RSS your honour.
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.
Not obliged your honour. Thanks.
