‘Death Penalty Is Judicial Murder’

Former Supreme Court judge K.T. Thomas chaired the bench which awar­ded the death penalty to three of Rajiv Gandhi’s assassins in 1999. However, in the wake of the recent rejection of Khalistani terrorist Devinderpal Singh Bhullar’s plea to have his death sentence commu­ted to life on grounds that he had already served 10-odd years on death row, Justice Thomas is more inclined to agree with the dissenting judge’s view in the Bhullar verdict of 2002—Justice M.B. Shah was the only one of the three-judge bench who had reservations about awarding death to Bhullar for his role in the 1993 car bomb attack targeting Youth Congress leader M.S. Bitta. Today, Justice Thomas firmly believes prisoners who have spent over 20 years in prison ought to be spared the death sentence. Excerpts from an interview with Chandrani Banerjee:

Have you always been opposed to the death penalty?

Yes. I believe it is judicial murder. Punishment should be corrective and reformatory in nature, not retributive. Death penalty does not help a convict. The law should have scope for reform of the convict’s mind. This is not to condone the convict. Pronouncing death for someone is not an acceptable situation for any kind of crime.

Do you think Devinderpal Singh Bhullar should be given a presidential pardon at this stage?

It was a three-judge bench that delivered the judgement on the case. Justice M.B. Shah, the seniormost on the bench, differed on it on one criterion: the confessional statement made to the police. Justice Shah was not convinced about it. History is witness to the fact that confessional statements to the police have never been considered clinching evidence. Justice Shah was of the opinion that confessional statements can be made under duress. While that was Shah’s view, I feel that if a fresh mercy petition is put before the President, he should examine all these issues afresh.

Do you think the confessional statement needs a review?

The confessional statement was not rec­orded before a magistrate. It was recor­ded by a police officer. As per law, this is not admissible as evidence, unless the police officer is of a certain rank or if a police officer records the confession in an extremely adverse situation. In the case of Bhullar, consider that if one other  judge had held the same position as Justice Shah, Bhullar would have been acquitted. There is little opportunity to correct a decision in such cases. So the points raised by Justice Shah are very important and should be looked at again and reconsidered by the President if a fresh mercy petition is placed before him. It’s a matter of life and death; there is no second chance to correct the decision.

In the case of Rajiv Gandhi’s assassins, you have said in an interview that “it was your misfortune to have been part of the bench that allotted death”. Do you regret it?

I wish to make a clarification here. It was my misfortune to have been part of any bench that pronounced the death penalty on convicts, including the one that did so in the Rajiv Gandhi assassination case. I regret that decision, because as an individual, I disagree with the death penalty. However, as a law-abiding citizen and a Supreme Court judge, I gave death penalty to many convicts because I was bound by my oath as Supreme Court judge.

You have also said that it is unconstitutional to hang the convicts of the Rajiv Gandhi assassination case....

Twenty-two years in jail means a person has served a life sentence almost twice. A jail term this long is almost like a lifetime. Hanging convicts after they have spent so many years in prison is unconstitutional. Convicts on death row sho­uld be given an alternative: of a life term.

There is a provision under section 433 A of the CrPC wherein the authorities concerned can give remission. I recommend that this law be looked into for convicts who have been on death row for more than 20 years. I repeat, punishment should be reformatory in nature.