Rediff Logo News Banner Ads Find/Feedback/Site Index
January 28, 1998


Judgment first of its kind in India's legal history

Archana Masih in Bombay

E-Mail this story to a friend Historic as it is, the death sentence on 26 accused in the Rajiv Gandhi assassination case is almost certain to come up for appeal in the Supreme Court. "There has to be an appeal. It is mandatory. In a death sentence the judgment comes to the higher court for confirmation," says criminal lawyer and Rajya Sabha MP Adhik Shirodkar.

Under Section 366 of the Code of Criminal Procedure a death sentence by a trial court cannot be executed unless confirmed by the high court. "Two judges of the high court division bench examine the nature of the crime, only then can execution take place. But in the case of TADA, the high court is by passed and the appeal directly goes to the Supreme Court," says lawyer Majeed Memon, counsel for many of the Bombay blast accused.

Though the Supreme Court specifies that a death sentence must be carried out in the rarest of rare cases, Shirodkar maintains the elimination of a former prime minister for a political purpose amounts to a "rarest" case.

The sentence of the designated court is seen as based on three main charges: murder, conspiracy and unlawful assembly. "If it is established that members of the group that committed the crime had assembled unlawfully, then under the law they are responsible for the assassination," says Shirodkar.

Elaborating further, he gives the example that if murder was the common object then under section 302 of the Indian Penal Code, the punishment is life imprisonment or a death sentence, if a rare case.

The judgment is the first of its kind in India's legal history. Apart from war crimes, the Nuremburg trials after World War II is the other precedent that several lawyers drew parallels with. "I am not aware of such a sentence in a single trial held in democratically tried courts," says criminal lawyer Srikant Bhat.

Though it is still early to say what will emerge when the trial court's judgment goes up for appeal, the death sentence cannot be carried out without the Supreme Court's confirmation.

"Then there are mitigating circumstances in the case of each accused," adds high court advocate and civil rights activist M A Rane, "The higher court can further probe the actual role, the degree of cruelty, the age etc of the accused. Depending on its findings, the court can either give the benefit of a life imprisonment or a death sentence."

Formerly, according to Indian law, for every murder case, the punishment was death. Only in exceptional cases, was the convict sentenced to life imprisonment. Subsequently, the rule was reversed, whereby punishment was life imprisonment in most cases and the death sentence awarded only in the rarest cases.

"Though the Tigers were very cruel and the actual person who committed the crime is dead, I don't think the high court will be as vindictive," says Rane, who is personally against the death sentence.

Memon maintains there exists a 99 per cent probability of an appeal. "It should be understood that this is a trial verdict. It is not final," he stresses.

However, Bhat welcomes the judgment. "Assuming that they (the trial court) have adequate evidence, then the punishment should be carried out. If not, then it can go up to the Supreme Court," he says. The lawyer is also of the view that the women accused should not be granted leniency. "Women often get away on this score and this leads to the glorification of female criminals."

Though death sentences are generally heard on a top priority, it will take at least three months before the case moves up to the Supreme Court.

Tell us what you think of this report