'Atmospheric' Pressure!

By Sanjay Pinto

It's not often that you fight medication induced drowsiness to hammer out a blog. But I've been provoked to write this as a few important aspects of the debate on transferring a case out of a State due to a "vitiated" atmosphere seem to have been overlooked.

When the Supreme Court  transferred  the Rajiv convicts mercy plea out of the Madras High Court today, on a petition filed by a Tamilnadu Congressman citing a "surcharged"  atmosphere in the State, I told myself "this is a hat trick !" A few years ago, Jayalalithaa's disproportionate assets case was moved to Bengaluru on a petition by the DMK. The sensational Kanchipuram temple murder case in which the two Shankaracharyas are the prime accused was also transferred out of Tamilnadu to neighbouring Puducherry for "a free and fair" trial.

The fundamental difference here is that the Rajiv convicts case is not a trial. It is in fact a sort of super appeal; having passed through all the tiers of judicial wisdom; and beyond! After the Supreme Court awarded Murugan, Santhan and Perarivalan the death penalty for a 'rarest of rare' murder; the trio appealed to the President for mercy. A plea that was rejected; and that gave rise to this fresh petition for commutation of the death sentence to life imprisonment on the ground that an inordinate delay of 11 years amounted to cruelty. The claim is backed by a legal precedent in Triveniben Vs State of Gujarat (1989) where the Court had held  that undue delay in execution of the death sentence entitles the condemned prisoner under Article 32 of the Constitution to seek commutation. What the Madras High Court had to grapple with was an important Constitutional question on whether a delay in disposing off a mercy plea, given the facts and circumstances of the present case was a sufficient ground for clemency. The case involves no investigation, no examination of witnesses, no cross examination and no fresh forensic evidence that could be tampered with.

True, there was a crowd on the Madras High Court campus on the day of the hearing of the case. There were reports of  a judge who initially wasn't keen to hear the case. There were slogans shouted. And there was a resolution passed by the ruling party; another indication of the race to capture popular Tamil sentiment. By transferring the case out of the Madras High Court what is the message that the common man would probably get? That the judges here could have been influenced by the crowd? By a few slogans? By political posturing? I think judges are made of sterner stuff. Moreover, with the present comprehensive security system that is now in place in the Madras High Court, crowds can no longer gate crash. Which is why I personally feel the Supreme Court could have called for a report of the Registry of the Madras High Court - one of the oldest chartered courts in India. Even Courts should be entitled to the principle of natural justice!

I remember covering the first bail application of the Kanchi Shankaracharya in the Madras High Court many years ago. Here too, the firebrand Ram Jethmalani appeared for the petitioner. The matter came up before Justice Balasubramaniam on a Saturday morning. The court hall was jam packed with lawyers, Shankaracharya devotees and media persons jostling for space, some of us almost forced into a Nataraja pose! On the court campus, a violent clash erupted between a political outfit whose ideology centred around atheism and a section of Kanchi Mutt devotees. We were the only channel to have the action live. If there is Tamil sentiment involved in the Rajiv case, there were religious sentiments in the Shankaracharya bail plea. Despite the tension, none of the judges seemed ruffled. In fact the Seer got bail only after a few attempts. That's my point. There is a marked difference between a trial and an appellate procedure. A crowd and slogans can intimidate a witness, not judges. For that matter, in every high profile case, there is 'pressure' stemming from 'media trial'. We don't end up transferring cases because the atmosphere is not conducive.

 The Supreme Court's logic is understandable. As it is hearing a similar issue in the Davinderpal Singh Bhullar case, taking this case on file would make things easier. But that has effectively deprived the Tamilnadu petitioners of an extra appellate shot! Justice must not only be done but also be seen to be done. That lofty ideal can be meaningful only if we trust our courts enough - that they will be able to rise above pressure tactics. And for that matter, today's verdict must serve as a lesson to those who indulge in posturing. Sloganeering can be quite counter productive.