TAG briefing in support of clemency appeals to the Chief Minister and Governor of Tamil Nadu and the President of India in the case of Mr Murugan, Mr Perarivalan and Mr Santhan
The 3 Tamils, Mr Murugan, Mr G. Perarivalan and Mr Chinna Santhan, were initially charged under the Terrorist and Disruptive Activities (Prevention) Act (TADA), which was later repealed. TADA was controversial for the following reasons:
· It was a secret process that, in this case, took place within the jail and much of the proceedings are not available.
· It shifted the burden of proof to the accused,
· The use of third degree torture to obtain information and consent by the detainee, which subsequently was relied on as evidence in the proceedings
In the absence of a public record of proceedings a defence lawyer has said that the remaining non-confession evidence was circumstantial.
The SIT chief who conducted the original police investigation later admitted to the Frontline magazine, "it would have been near impossible to secure convictions without the special provisions of TADA".
Amnesty International has identified TADA as containing provisions that were incompatible with international standards of fair trial. ( http://www.amnesty.org/en/library/asset/ASA20/039/1994/en/90a58793-ebe8-11dd-8cf1-49437baee106/asa200391994en.html )
It was under this law that the three were convicted to a death sentence, along with 23 others in January 1998.
On appeal the Supreme Court later acknowledged that all 26 should never have been convicted under TADA. Although it aquitted them of all charges under that particular legistlation, the death sentences of these 3 persons were upheld under S.120B of the Indian Penal Code (IPC) alongside S.302 for murder.
Deficiencies in the judicial process leading to the death conviction
Deprivation of basic standards for fair trial
The initial trial was conducted under TADA, in a secret court within the jail precincts, where the onus of proof shifted to the accused, contrary to the universally-recognised presumption of innocence, unless proven otherwise.
The heavy reliance made upon the confessions of the accused whilst in detention, in circumstances where torture was known to be used to elicit confessions, casts doubt on the fulfilment of the burden of proof of beyond reasonable doubt.
The lower court did not wait for the completed report of the ongoing investigation by the Multi-Disciplinary Monitoring Agency (MDMA), part of the mandate of the Central Bureau of Investigation (CBI), into the assassination of Rajiv Gandhi. The report, lacking the information and feedback requested from numerous countries, was only closed in 1999, after the verdict. Thus the lower court relied on confessions and excluded crucial evidence.
At the appeal stage in the Supreme Court the accused were acquitted from TADA but the findings of fact that had been made under the TADA process were allowed to remain since the appellate court did not have jurisdiction to make new findings of fact.
Perarivalan, at the time of the crime, a 19 year old worker at the lodge where the assassin stayed, was sentenced to death although the only act he allegedly committed was buying the batteries used for the bombing, without knowledge of their purpose. This death penalty was imposed by the lower court based on the TADA provisions without having fulfilled the basic standards of a fair trial.
Admissibility of confession as evidence
The Appeal courts conviction under IPC legislation, was primarily based on the confessions obtained under TADA legislation.
S.12 TADA allows its evidence to be used for other offences tried concurrently. However, not only do these confessions violate the prohibition of torture and ill-treatment under Article 14 of the International Covenant on Civil and Politcal Rights (ICCPR) to which India has ratified and legally bound by, but reliance on them is also contrary to the s.25 and s.26 of Indian Criminal Procedural Code (CrPC), which prohibits the admissibility of confessions made to a police officer.
It is now well known that such confessions were regularly extracted via torture or inhumane treatment. It is on this basis that a dissenting judge in Kartar Singh vs. State of Punjab (Writ Petition No. 1833 of 1984), referred to s.15 TADA as "unfair, unjust and unconscionable, offending Article 14 and 21 of the Constitution which gives a person the right to equality before the law and the right of life and personal liberty”.
Allegations of coercion in extracting statements were never impartially investigated at the trial stage, thus depriving the accused of the basic principles of natural justice; the right to be heard, and the right against bias.
Denial of the right to appeal
Despite being convicted under IPC, the trial of the 3 Tamils was based on the provisions of TADA.
S.19 of TADA provides for a direct appeal to be made from the lower court to the Supreme Court. This run contrary to the S. 366 of the Indian Criminal Procedural Code, where an appeal against death conviction has to be made to the High Court, who would re-examine the evidence prior to coming to an independent conclusion based on the merits.
Despite the legality of this provision, the fact remains that the defendants were acquitted from TADA, and consequently deprived of their right to appeal to the High Court.
This deprivation not only means the loss of an appeal channel, but the accused also lost the opportunity to admit new evidence and information, as the Supreme court’s criminal appellate jurisdiction is confined to the question of law.
Deprivation of the opportunity to be heard prior to the sentencing.
The short duration of time taken between the passing of judgment and pronouncing of sentence - a period of 2 hours – is of great concern.
Such short duration has deprived the counsel for the defendants, the opportunity to present all information necessary for the purpose of sentencing. This violates the mandatory legal requirement provided by s. 235(2) Indian Criminal Procedural Code, for an effective and substantial opportunity for the accused to be heard on the question of sentencing.
It was held by the Supreme Court in Muniappan v State of Tamil Nadu 1981(3) SCC 11, that a serious effort has to be made genuinely by the judge in eliciting information from the accused on the question of sentencing. Mere questioning does not suffice. In fact, a higher degree is imposed when it is a question of life and death, as in the present case (Allaudin Mian v. State of Bihar (1989) 3 SCC (5) cited in Jai Kumar v. State Of M.P  Rd-Sc 197).
It is clear that the lack of opportunity to prepare and make sentencing submissions has deprived the above three persons of the fundamental rights to a fair hearing, and fair sentencing.
Delay in consideration of their pleas for clemency
The clemency plea of Mr Murugan, Mr Perarivalan and Mr Santhan was rejected by the President this early August, 11 years from its submission to the President on 26th April 2000, and 20 years from the original crime in 1991.
They have spent 11 years in anguish, not knowing their fate. The Supreme Court has identified such delay to be tantamount to a violation of the fundamental right to life and liberty enshrined under article 21 of the Indian constitution.
It is clear that the above process would not meet present day international standards of fair process necessary for a safe conviction and just sentencing.
Of most concern is that allegations of the use of torture in obtaining confessions have never been independently investigated, notwithstanding India is a signatory to international conventions that prohibit torture.
It is India’s practice to impose the death penalty only in the rarest of circumstances and indeed India has not carried out a death penalty in the last seven years. It would be wrong to impose the death penalty now for this 20 year old crime, in the above circumstances where a fair trial and sentencing process have not be made available in the decades that have elapsed.