NEW DELHI: More than 12 years after he presided over a 3-judge Supreme Court bench that unanimously upheld death penalty to Rajiv Gandhi assassination case convicts Murugan, Perarivalan and Santhan, Justice K T Thomas raised many eyebrows by advocating a review of capital punishment awarded to them.
Former Chief Justice of India V N Khare said it was not open for a retired judge to comment on his own judgment and said such statements of retired judges about their own judgment would tarnish the sanctity of judicial decisions.
Former Attorney General Soli J Sorabjee was more categorical in his criticism. He said: "Such statements after retirement bring discredit to the judicial system. If the judgment was wrong, then the judge while on the bench ought to have initiated suo motu remedial process of review. He should have taken steps while being a judge and not comment on the correctness of his judgment after retirement."
Justice Thomas had said it was his "misfortune" to have presided the bench, also comprising Justices D P Wadhwa and S S M Quadri, and awarded death penalties to the three convicted for participating in the conspiracy to kill the former Prime Minster.
He had also said the judgment was "technically" not correct as the bench had not considered "the nature and character of the accused" as required prior to classifying a case under "rarest of rare" category to award capital punishment. He said three convicts have already undergone 22 years of incarceration which was more than a life sentence and hence execution of death penalty would be unconstitutional as it would amount to punishing them twice over.
On Tuesday TOI spoke to Justice Thomas again. He justified his statement and said: "If a serving judge can review his judgment, then a retired judge would stand on a higher footing to comment on his earlier judgment. If I am convinced that the earlier view was not correct, then as a retired judge I am in a better position to comment on it."
Former CJI Khare said it was easier to feel wiser after retirement. "When a judge decides a case, he focuses mainly on evidence and law. But, his ideology and knowledge gained from experience too play some part in arriving at a conclusion. Strictly speaking, a decision rendered at a certain point of time should never be questioned by the judge who had authored it" he said.
Prolonged incarceration, conduct of a condemned convict while in jail, his repentance and abhorrence to the ideology which had driven him to commit murders - are all grounds to be considered by the President in a mercy petition, Justice Khare said.
Justice Khare gave the example of the Supreme Court's 1976 judgment in A D M Jabalpur case upholding the draconian provisions of Emergency, including suspension of fundamental right to life by the government. "Take for example the Emergency judgment. It is easy for a judge to feel sorry about it. But, lakhs of people were thrown into jail. So, a judge will remain accountable to the judgment he had given. Change of mind in later years to term the judgment incorrect will not do," he said.
Sentiments of the former CJI had found mention in the Supreme Court's judgment in Rajiv assassination case. In overcoming the dilemma to award death penalty to Nalini, Justice Quadri in his judgment had said: "In dispensing justice a Judge is not only discharging a sovereign function but he is also doing a divine function. Even so, the most difficult task for a Judge is to choose the punishment of death in preference to life imprisonment for he is conscious of the fact that once the life of a person is taken away by a judicial order it cannot be restored by another judicial order of the highest authority in this world."
"Having taken upon himself the onerous responsibility of doing justice according to Constitution and the laws, the Judge must become independent of his conviction and ideology to maintain the balance of scales of Justice," Justice Quadri had said on May 11, 1999.
Thomas’s remark can erode faith in judiciary, say jurists
This article
Thomas’s remark can erode faith in judiciary, say jurists
can be opened in url
http://newspseudoscopic.blogspot.com/2013/02/thomass-remark-can-erode-faith-in.html
Thomas’s remark can erode faith in judiciary, say jurists
