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Wait, Murderous Bus-Burning AIADMK Members Were 'Victims' Of Mob-Think? The Apex Court Thinks So

01/04/2016 8:16 AM IST | Updated 15/07/2016 8:26 AM IST
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A supporter of the All India Anna Dravida Munnetra Kazhagam (AIADMK) holds a cutout of the party leader Jayaram Jayalalitha as he celebrates with firecrackers the early lead of their party in Tamil Nadu state, in Chennai, India, Friday, May 16, 2014. Jayalalitha's AIADMK was leading in most of the 39 seats in her state. (AP Photo/Arun Sankar K.)

Co-authored by K.M. Vijayan

In the 2000 Pleasant Stay Hotel case, the court convicted J Jayalalithaa and sentenced her to one year of "rigorous imprisonment". Following the conviction, AIADMK party members and cadres orchestrated statewide protests and targeted violence leading to damage to public property, deaths and injuries. In one such incident, AIADMK party members stopped a bus carrying students, and torched it with a petrol bomb. Three young students--Hemalatha, Gayathri and Kokilavani--burned to death, and 16 others were injured. The event came to be called the Dharmapuri bus burning incident. On 15 February 2007, the session court sentenced three AIADMK members--Muniappan, Nedu alias Nedunchezhian and Maadhu alias Ravindran--to death and 25 others to seven years imprisonment. The judgment to execute was upheld by the Madras High Court on 6 December 2007, and by the Supreme Court on 30 August 2010. In October 2010, Presidential Pardon was denied for all three convicts.

The original judgment upheld by the apex court sent a strong message against political thuggery and signalled zero tolerance for such acts of organized violence.

However, in January 2011, the Bench hearing the review petition filed by the three convicts seeking reconsideration of the Supreme Court's 2010 judgment stayed their execution. On 12 March 2016 the Supreme Court commuted the death penalty of all three men into life imprisonment, stating that the "incident happened in a flash during mob frenzy and is not premeditated." This raises serious questions on incorrect interpretations of the Supreme Court's jurisdiction to review judgments in a criminal case and its erroneous interpretation of the merits of the fact.

Power of review

Following the Dharmapuri bus burning, the sessions court rightly convicted the three AIADMK members, and called the death of the three young women, the "rarest of the rare" crime. The court specifically stated that the heinous crime was perpetrated "only for the political career", and stated explicitly that the accused "committed the murder in [an] inhuman way." The judges observed that the act was a, "diabolical, ghastly action" against "three innocent girls".

On appeal, the Madras High Court confirmed the Sessions court's order, concurring with their findings. The Supreme Court reiterated the same:

"The manner of the commission of the offence is extremely brutal, diabolical, grotesque and cruel. It is shocking to the collective conscience of society. We do not see any cogent reason to interfere with the punishment of death sentence awarded to the three accused by the courts below."

The original judgment upheld by the apex court sent a strong message against political thuggery and signalled zero tolerance for such acts of organized violence.

In the current case, the Supreme Court did not have the legal jurisdiction to review the judgment.

In the current case, the Supreme Court did not have the legal jurisdiction to review the judgment.

According to Article 137 of the Constitution of India, the Supreme Court has the power to review any judgment pronounced or order made by it. However, Section 362 of the Code of Criminal Procedure mandates that no court, when it has signed its judgment or final order shall alter or review the same except to correct a clerical or arithmetical error. The court's mandate expires the moment the official order disposing the case is signed. Therefore, in this case, the Supreme Court lacked the authority and the jurisdiction to legally rehear the criminal case for review after the judgment was rendered, since there was no clerical or arithmetical error. Under Article 145 an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure:

"The grounds for review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record."

The present case does not come under this rule. The courts, leading up to the review, stated clearly that the murder of these girls was premeditated. On the record, no error manifested or was argued in the review. The entire review is without jurisdiction and justification.

Flawed judgment

The court's judgment that the bus burning was neither "predetermined nor pre-planned" is erroneous. It contradicts the facts presented, argued and upheld by the sessions court, the high court and the Supreme Court. In the review, on the hand, the court agreed to the flawed and unsubstantiated arguments put forward by the defence counsel about the doctrine of "diminished responsibility", contending that "the convicts were victims of mob psychology." The defence counsel referred to the "riots after the killing of former Prime Minister Indira Gandhi", to argue that the accused, "who were part of a rampaging mob, cannot be held fully criminally liable for the crime as their mental capacity [was] impaired at the time." This argument contradicts the facts presented that clearly indicate that the AIADMK members planned, organized and executed state-wide violence to further their political career.

jayalalithaa

The prosecuting agency, the State of Tamil Nadu, did not counter the arguments of the defence counsel, and instead left it for the court to decide the case on its merits. J. Jayalalithaa, whose party cadres were responsible for the crime, is back in power as the Chief Minister of Tamil Nadu. The fact that the state prosecutor refused to counter and argue against the review petition raises serious conflict of interest issues.

The judgment that the bus burning was neither "predetermined nor pre-planned"... contradicts the facts presented, argued and upheld by... the Supreme Court.

The Supreme Court cannot introduce unsubstantiated opinion as fact to commute a sentence. The concept of diminished responsibility cannot be applied to riots and collective violence. The reasons provided for the commutation of sentence will have serious consequences for cases involving riots, mob justice and acts of political thuggery. The court's judgment goes against existing legal, political, scholarly research and findings that clearly establish that the collective violence of mobs is based on planned and joint criminal enterprise, with a clear command responsibility often going up all the way to the party's political leadership. Riots and collective mob violence in India are not spontaneous occurrences and portraying them as such makes the pursuit of justice for victims harder if not impossible.

Riots and collective mob violence in India are not spontaneous occurrences and portraying them as such makes the pursuit of justice for victims harder if not impossible.

Work by eminent political scientist Paul Brass who has studied riot production and mob violence in India points to the crucial fact that riots are premeditated, and produced to achieve particular ends. This is true of the violence that erupted after the Indira Gandhi's death, the communal riots in Gujarat and in the case of Dharmapuri. In all these instances there is proof of "preparation/rehearsal and activation/enactment". The theatrical staging of mass hysteria and violence for the consumption of news channels are weapons of political projects. The Dharmapuri bus burning was no different, and the courts in rendering the initial judgment clearly acknowledged this.

Another curious case is that a similar review petition was filed in the case of Afzal Guru. But he was hanged before such a petition could be reviewed. When the country's highest court treats cases differently one has to wonder what this means for justice. Does a nation's "collective conscience" work differently when the perpetrators are linked to its political class?

The legal maxim Fiat justitia ruat caelum (Let justice be done though the sky falls) means that justice must be rendered regardless of consequences. Over the past few decades, judicial corruption, incompetent judges, impropriety and utter discard for the law has made the Supreme Court responsible for more instances of miscarriages of justice.

Does a nation's "collective conscience" work differently when the perpetrators are linked to its political class?

It is a sad state of legal and political affairs when the defence counsel peddles 'facts' and theories that are incorrect and discredited. It is even more regrettable that the Supreme Court has performed the function of validating the fiction that riots are carried out by furious mobs with diminished mental capacity. The courts have displaced the blame, from the men and women who planned and orchestrated these events for political gains, and have squarely placed responsibility on an amorphous mob. The court's illegal usurpation of jurisdiction (remember, it does not have the right to review the decision under Section 362 of Cr.P.C.), coupled with the erroneous interpretation of the facts, and bringing in the concept of "diminished responsibility" for mob violence will only bode ill for the country and for justice.

K.M. Vijayan is a Senior Advocate

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