So long as a nation has a death penalty somebody will hang. But whether justice is served is the question. The eight-week stay given by the Madras high court to the three convicted killers of former prime minister Rajiv Gandhi who were scheduled to meet the hangman on September 9 underscores the flaw in a judicial system that creates so wide a gap between the crime and the punishment that lacunae can appear and these can make a mockery of the scales of justice.

For example, the heinous crime of blasting Gandhi and 14 other innocent people deserves no sympathetic quarter. Whether the hanging will bring closure to their families is not known but after 19 years the dynamics are not the same.

Now, to add to this agony we have the judicial conundrum. If 14 years imprisonment is ipso facto life, than they have passed that milestone. By that measure anything commuted from death can only be life as it is the second most stringent penalty. Ergo, they have already served it. So either they hang or they are set free.

Indeed, the high court in its wisdom has questioned the delay in the clemency factor seeing as how a decade has passed since it was forwarded to the president’s office. Why it took so long to be rejected seems to be the basis on which the clemency request has been passed back to the president for review.

Put aside for a moment the fact that it is the Madras high court issuing the writ and the three convicts are all from that ilk and also resist the temptation to make comparisons with chief minister Omar Abdullah’s allegations which are uncomfortably close to logic. Let us accept the courts are not reflective of the government and even if there are those who will conclude this is a political move, the legal aspect is undeniable. Why did it take 11 years to pass across the highest desk? Why was the delay never questioned? In the corridors of power how is it possible no one thought to bring it up for so many years?

Now, much as it is satisfying to state that all people are equal under the law it isn’t always accurate. The assassination by suicide bombing of a former and a probably a future and potentially successful prime minister is exceptional. His mother’s killers were put to death within five years of the day they pumped 33 bullets into her when they were part of her VIP security detail. Rajiv’s tragic demise and that of 14 forgotten souls with him did not travel the fast track of justice. In fact, it shunted away from Indian memory and few citizens can even recall they had any idea of what was happening to the killers. It is relatively amazing that such a high profile act of bloodshed has so easily slipped into the shadows of history.
But the Madras high court has opened up a new thought process that will have experts in jurisprudence deeply concerned about the way the death penalty is being applied and the length of time the procedure takes.

Two major aspects come up.

After the president has rejected the clemency can it go back to the courts unless there is sufficient evidence that a miscarriage of justice has occurred or there is new proof providing mitigating circumstances? Without these factors how can it go back? Delat does not impact on the burden of proof which is a given.

If it can go back on technical grounds then the presidential pardon itself comes under review. If the order to proceed can be held then so can the order to question a pardon.

The second element, as mentioned, concerns the definition of life imprisonment and the fact that a death sentence being an absolute calls upon the government to ensure there is no torture, humiliation or pain involved in the delivery of the punishment. Having the threat hanging overhead for two decades is possible a grounds for challenging the issue of intent and allows the anti-death penalty lobby to centre stage the factor of humane consideration.

By the methodology now being seen Kasab the Mumbai terrorist has another 16 years to go of being looked after the state and, in some ways, becomes sanitised by time of the gruesome crimes committed.

The three convicts, Murugan, Santhan and Arivu, are on their way to establishing a precedent in that if the president of India accepts that there has been an inordinate delay that goes against the spirit of the law, the three could possibly hear the unclicking of the clock. Time has already been served.

If the president continues to stand by the rejection of clemency and makes the 11-year delay a mutually exclusive issue then the courts are duty bound to examine the merit of that stand and move it again to the supreme court on the grounds that a death sentence now, after the serving of a life sentence and more, would not serve the ends of justice.

It really is an impasse and not a pleasant one. They killed in cold blood and showed no remorse. The state and the prosecutors must be indicted if the guilty now get away on very tangible technical escape routes.