The Tribune, Chandigarh, India

Perspective

ON A RAZOR’S EDGE
The Supreme Court of India and the Madras High Court are hearing petitions challenging the President’s rejection of mercy petitions. As the controversy rages, the country waits for the ruling that may change the way death sentences are dealt with
Uttam Sengupta

Death sentences, one would like to believe, are not given lightly. Long deliberations and the due process of law, a fair opportunity to the accused to appeal against the verdict and a last ditch effort by them to secure clemency generally precede execution of the capital punishment. Once the mercy petitions are rejected, it should normally be a matter of time before the sentences are carried out.

But at least five death sentences are today stalled because the government and the judiciary are faced with questions that were never raised before or, if raised, were raised by human rights activists, jholawalas and academics. But for the first time, state Assemblies, political parties and even the courts seem to have paused to take a second look at issues, which beg for a resolution.

The law, for instance, does not prescribe how long the President should take to consider the pleas for clemency. Should that mean that successive Presidents can sit over them and do nothing ? Nor does the law, for example, require the President to cite reasons for the decision to commute death sentences into imprisonment for life. It is also not clearly laid down whether the President is bound by the advice given in such matters by the council of ministers, essentially the Home Ministry. The courts are also being called upon to resolve if long delays in disposing mercy petitions violate human rights and canons of justice.

Politics of HANGING

Political considerations and subjectivity cannot entirely be ruled out if the President and the executive are left to take the final call. A BJP-led government, for example, could well order the execution of everyone on the death row in order to demonstrate its own iron-will and commitment to the rule of law. But had they been in power, they would possibly have found it equally difficult to take a call if ‘allies’ like the Shiromani Akali Dal and the AIADMK warned them of a dire fallout if Devinder Singh Bhullar or the accused in the Rajiv Gandhi assassination case were to be executed.

While the courts are required to cite reasons for each individual while giving the death sentence, by all accounts this was not followed in the Rajiv Gandhi assassination case. In the case of Devinder Singh Bhullar, accused of masterminding a car bomb blast in New Delhi, the defence has been pleading that his confession, on which the case rests, was extracted under duress and is bad in law.

Significantly, the law has not kept pace with technology and is yet to mandate that confessions be video recorded in the presence of independent witnesses and possibly the defence lawyers, so that possibilities of intimidation and use of force are ruled out.

Also, can death sentence be justified for people who stand accused of giving shelter and food to the actual perpetrators of a crime ; or those who allegedly ‘knew’ of the diabolical plan of the criminals ? Those who planned and executed Rajiv Gandhi’s assassination are long dead and gone. Similarly, those who attacked the Indian Parliament were all killed the same day. It may be argued that those who played a peripheral or a minor role need not be awarded capital punishment.

Meanwhile, national opinion remains vertically divided on the question of executing the five men, whose pleas for mercy were rejected by the President in September this year. In an unprecedented move, the Tamil Nadu Assembly adopted a unanimous resolution requesting the President to commute the death sentence of the four accused of conspiracy in the Rajiv Gandhi assassination case.

A similar resolution by the Punjab Assembly was planned for commuting the sentence of Devinder Singh Bhullar, accused of a car bomb blast in New Delhi way back in 1991. While the resolution for Bhullar could not be moved, MLAs and MPs cutting across party lines have petitioned the President and the government for commuting his death sentence.

The Madras High Court not just admitted petitions challenging the Presidential decision to reject their mercy pleas but also stayed the execution of the four accused, who were sentenced to death way back in 1998, a sentence which was confirmed by the Supreme Court the following year.

The petitions have questioned the inordinate delay in deciding on the pleas for mercy. It took almost 12 years since 1999 before their mercy petitions were finally turned down in 2011. All the four accused having already spent the last 20 years in prison, the petitions argued, they were being subjected to both ‘life imprisonment’ and ‘death penalty'.

The Government of India, in its affidavit, has however claimed that ‘delay’ in disposing the mercy petitions cannot be a valid ground for commuting the capital punishment or, for condoning the enormity of their crime. The affidavit also stresses that petitions by MPs and MLAs ( or unanimous resolutions adopted by state Assemblies) have ‘no legal ground’ and cannot be considered by the court. Nor can the court look into evidence afresh or have a re-trial.

The hearing before the Madras High Court towards the end of November, therefore, assumes extraordinary importance. Because the decision will influence the fate of several others on the death row. As it is, inconsistencies by courts have already cast a cloud on the entire process. In the Rajiv Gandhi assassination case, for example, the trial court sentenced 26 people to death. But the Supreme Court released 19 of them on the ground that they had already been in jail for seven years. The death sentence of three more were commuted to life-imprisonment while the capital punishment were upheld in the case of the remaining four.

Even the trial court in this case did not give individual reasons for awarding the death sentence for each of the accused. Seven special reasons were cited for all of them together. While it is mandatory to do so under the CrPC, it is not uniformly followed. Questions are being raised as to how the courts differentiated between the four to be hanged, and others.

In the case of Devinder Pal Singh Bhullar he was deported from Germany in 1995 and was charged with the car-bomb attack on M.S. Bitta in New Delhi (1993). While Bhullar’s presence at the site was never proved and none of the prosecution witnesses identified him, a confessional statement given by him and recanted later proved to be his nemesis.

An instructor at the Guru Nanak College of Engineering, Ludhiana, Bhullar had reasons to be both angry and wary of the police. Like many of his friends, he was a Khalistan supporter and was blamed for a bomb attack on a police officer in Chandigarh. When a manhunt was launched, he went underground ( he had got married barely two months ago). His father and uncle had been allegedly taken away by the Punjab Police and disappeared. The family claimed it was harassed for alleged links with militants and Bhullar’s sympathy for their cause marked him out.

He was arrested in Germany , where he tried to seek political asylum, for travelling on false papers. He was also deported to India, where he was charged with plotting the bomb blast in 1993 outside the Congress office in New Delhi. While the target was said to be M.S. Bitta, then a Youth Congress leader, he escaped with minor leg injuries but nine securitymen were killed in the blast. Bhullar had not been named by anyone. But based on his confessional statement, police booked him for masterminding the blast. The statement, strangely, was not handwritten but was a computer printout. The courts took note of these procedural irregularities but disallowed Bhullar’s claim that he was being framed.

The presiding judge of the Supreme Court bench, Justice M.B. Shah, acquitted him after taking note of the fact that all the other accused in the case had been acquitted for want of evidence. Bhullar, he noted, could not have conspired with himself and observed that the evidence produced against him was far too tenuous for him to be held guilty. The other two judges, however, upheld the death sentence.

Tardy investigation by the police is a major factor that vitiates trials. But many courts appear tolerant to the omissions and commissions of the police. In principle, the two branches are independent and there is separation of powers. But in effect, courts very often come across as an instrument of the state agencies and far too willing to accept their contention at face value.

In the case of Arivu, he was just 19 and an engineering student when he was picked up and charged with playing a role in the assassination of Rajiv Gandhi. He knew some members of the LTTE squad set up to execute the plot and had apparently lent one of them a battery.

Former Prime Minister Rajiv Gandhi was assassinated in 1991 by a suicide bomber, later identified as Dhanu. While the plot was traced back to the LTTE, the Special Task Force investigating the assassination , thanks to several lucky breaks, quickly managed to identify several other key members of the suicide squad. Some of them were tracked to a house near Bangalore but before the STF could catch them alive, they committed suicide with the lynchpin, Sivarasan or Sivarajan, killing himself with a 9 mm pistol. Others used the trademark cyanide capsules the LTTE cadres carried with themselves.

With the squad virtually eliminated, the STF chose to prosecute as many as 26 co-conspirators. Four of them were awarded the death sentence but the death sentence of one of them, Nalini, was commuted to life imprisonment after she was met in prison by Priyanka Gandhi and following an appeal issued by Mrs Sonia Gandhi. Others were either let off or sentenced to life or imprisonment for varying periods.

Even a CBI inspector, J Mohanraj, who was drafted into the CBI after the assassination and helped the agency track down many of the suspects, said in a newspaper interview, "…the few who were caught were perhaps guilty, but that guilt was quite minor when one looks at the whole picture. They were mere pawns who may or may not have had an inking of the real plan. And for that, the over two decades they have spent in prison is enough."

COLLECTIVE CONSCIENCE

Another major case in point is the audacious attack on the Indian Parliament in December, 2001, which took place barely three months after the 9/11 attack on the twin towers in New York. Barely a day before the attack the then Prime Minister Atal Bihari Vajpayee warned that an attack on the Indian Parliament was imminent. And true enough, the very next day an explosive-laden Ambassador car swept into the Parliament premises and, when challenged, five terrorists jumped out and began shooting indiscriminately. They were killed soon enough but not before they had felled nine securitymen and a gardener.

The investigation took a mere 17 days before the case was cracked. A dozen people were identified as the conspirators. Five of them had been killed in the exchange of fire while three more, Gazi Baba, Masood Azhar and Tariq, were never arrested as they were presumably in Pakistan. Security personnel arrested four more people, namely Afzal Guru, a cousin of his Shaukat, his wife Afsana and S A R Geelani. Two of them were acquitted while Shaukat was sentenced to 10 years’ imprisonment. Afzal Guru was sentenced to death.

Tension between India and Pakistan reached a fever-pitch and war cries reverberated as the government dispatched half a million troops to the Pakistan border. Afzal Guru, a surrendered militant, was produced before the media and confessed. Afzal claims he was denied a chance to consult a lawyer, who would probably have advised him to say nothing. Even during the trial, he claims he was denied the services of a lawyer and most prosecution witnesses went unexamined.

The prosecution claimed that it was SAR Geelani’s confession that led them to Afzal Guru. But in the court it was revealed that Geelani was arrested four hours after the message was flashed to Srinagar to arrest Afzal Guru. Contrary to rules, the arrest memo and the seizure memo bore the signatures of policemen as witnesses. Indeed, the Delhi High Court pulled up investigators for producing false arrest memos, doctoring telephone conversations, confining people illegally and forcing them to sign on blank papers.

The judicial verdict confirming the death sentence to Afzal Guru stated that " …the collective conscience of the society will only be satisfied if capital punishment will be awarded to the offender."

In any case, all eyes are now fixed on the courts which are expected to rule if inordinate delays in disposing mercy petitions are permissible, whether long delays can be a valid ground for commuting death sentences and, finally, whether such delays merit judicial reviews of the processes that lead to the award of the death sentence. The ruling is unlikely to stop the debate but will at least bring a closure to some of the most contentious cases in recent times.

l Afzal Guru is accused of escorting one of the five terrorists, who attacked the Parliament and were killed by security forces, from Kashmir to New Delhi and of accompanying him when he bought a second hand Ambassador two days before the attack.
l Arivu was 19 and an engineering student when he was arrested following Rajiv Gandhi’s assassination. His only crime, established so far, was to lend a battery to the LTTE squad , which carried out the assassination. While the young Tamil student was a LTTE sympathiser, his statement that he was not aware of the plot, cut no ice with the courts.
l Devinder Bhullar was accused of masterminding the car bomb blast in New Delhi directed at MS Bitta. His confessional statement became the basis of his conviction and was used to prove his guilt.

CAPITAL PUNISHMENT
l China executes the highest number of convicts, followed by Saudi Arabia, United States of America and Pakistan.
l In 2008 China executed 1,718 people, Saudi Arabia 102, USA 37 and Pakistan 36. (source : Amnesty International)
l India is yet to execute anyone after hanging Dhananjay Chatterjee in 2004
l In 2008, as many as 2390 people were executed in 25 countries while 8,864 more were sentenced to death in 52 countries.
(source : Amnesty International)

OPED

Fall of an icon
A few ‘friendly tips’ over the phone to a friend have disgraced a successful career and Rajat Gupta, the poster boy of the corporate world and first non-US born to head an American company now faces a possible sentence of 105 years in prison for insider trading. Is there a lesson for us in India?
Ashish Kumar Sen

Rajat Gupta, former Board member of Goldman Sachs coming out of the court after being released on bail

If there is one question Silicon Valley venture capitalist Kanwal Rekhi would like to ask his longtime friend, Rajat K. Gupta, it would be this: "Why? Pray tell, why?" Gupta, the Kolkata-born former director of Goldman Sachs who shattered the proverbial glass ceiling in Corporate America when he became the first non-white and non-U.S.-born head of McKinsey & Co., is facing insider trading charges that carry a potential penalty of 105 years in prison.

The U.S. Securities and Exchange Commission charged Gupta last month with illegally leaking corporate secrets to Raj Rajaratnam that helped the Sri Lankan-born hedge fund manager’s firm secure profits or avoid losses of $23 million. Prosecutors allege Gupta stood to gain because of his business partnerships with Rajaratnam.

Before his star was eclipsed by the dark cloud of his legal woes, Gupta was exalted by the Indian American community. "His contributions have been phenomenal," gushed Navneet Chugh, an attorney at The Chugh Firm in California who has known Gupta for 15 years. "He will always be revered. I will always look up to him for all the good he has done. It was my privilege to work with him, and I am grateful for his contributions to the society here in the USA and India," he added.

Rekhi echoes this sentiment. "His achievements were phenomenal," admitted Rekhi. "That’s what makes this whole thing such a sad story."

A federal grand jury in Manhattan charged Gupta with one count of conspiracy to commit securities fraud and five counts of securities fraud. Gupta has denied any wrongdoing and has been released on a $10 million bail. Trial has been tentatively set for April 9.

Gupta, an alumnus of the Indian Institute of Technology in New Delhi, earned an MBA from Harvard Business School in 1973 and on graduation joined the global management consulting firm McKinsey & Co. Gupta has four daughters and lives in a lavish waterfront mansion in Westport, Connecticut. He was affiliated with several organisations, some of which he guided as a board member, while others benefited from his counsel. He served as chairman of the U.S.-India Business Council (USIBC) and was on the board of several blue chip firms. His work extended to non-profits. He was a senior advisor to the Bill and Melinda Gates Foundation and served on the board of the Global Fund to fight AIDS, Tuberculosis and Malaria, which he also chaired in 2007. He helped found the Indian School of Business (ISB) in Hyderabad as well as the American India Foundation.

The insider trading scandal brought Gupta’s world crashing down around him. He was forced to give up most of these affiliations. Earlier this year, he also stepped down from the post of director at AMR Corp., the parent company of American Airlines, as well as Genpact Ltd. He also resigned as chairman of ISB.

Rafiq Dossani, a senior research scholar and director of the Centre for South Asia at Stanford University, was teaching a course at ISB when the insider trading scandal erupted in March. He recalled that most of the faculty at the school were shocked and believed Gupta to be innocent.

Gupta frequently included quotes from the Bhagwad Gita in the inspirational speeches he gave the students at ISB and in his remarks at other public events. A cursory look at the text of those speeches reveals a significant portion was dedicated to integrity.

The SEC charges make a mockery of Gupta’s purported commitment to integrity. The SEC alleges:

l Gupta illegally tipped off Rajaratnam about Goldman’s positive quarterly earnings and a planned $5 billion investment by philanthropist Warren Buffett. Based on this inside information, Rajaratnam arranged for Galleon funds to purchase more than 215,000 Goldman shares. Rajaratnam later informed another participant in the scheme that he received the tip on which he traded only minutes before market closed. Rajaratnam caused the Galleon funds to liquidate their Goldman holdings the following day after the information became public, making illicit profits of more than $800,000.

l Gupta tipped Rajaratnam to inside information about Goldman’s positive financial results for the second quarter of 2008 in a flurry of phone calls on the evening of June 10, 2008, after Gupta learned from Goldman CEO Lloyd Blankfein of the firm’s quarterly earnings results, which were significantly better than analysts had estimated. Rajaratnam used that information to make illicit profits of more than $18.5 million for the Galleon funds.

l Gupta tipped Rajaratnam with confidential information that Gupta learned during an Oct. 23, 2008, board meeting about Goldman’s impending negative financial results for the fourth quarter of 2008. As a result of that information, Galleon funds avoided losses of more than $3.6 million.

l Gupta illegally disclosed to Rajaratnam inside information about P&G’s financial results for the quarter ending December 2008. Galleon funds made illicit profits of more than $570,000 with that information.

The SEC has released a wire-tapped conversation between Gupta and Rajaratnam which it alleges was one of several between the two in 2008 in which Gupta illegally shared corporate information with Rajaratnam.

Gupta’s lawyer, Gary Naftalis, maintains his client is innocent. He said there were legitimate reasons for the calls between Gupta and Rajaratnam, and that Gupta lost his entire investment in Rajaratnam’s Galleon funds.

Incidentally, Gupta met Rajaratnam almost 10 years ago through their work for the ISB to which Rajaratnam was a major donor.

Not many of Gupta’s friends are willing to stand by him in his darkest hour. "It’s human nature," said Wadhwa, explaining this dearth of supporters for a man who not long ago was the cynosure of most eyes.

On the record
Hyderabad metro will improve upon Delhi, Bangalore
by Suresh Dharur

N V S Reddy

India’s largest metro rail project, Hyderabad Metro has faced several hurdles since it was first announced over four years ago. Environmentalists warned that it would deface the city and spoil the skyline, politicians raised issues of land acquisition and demanded alignment modification to suit their own agenda. Frequent disruptions due to the Telangana agitation also cast a shadow.

However, passionate about making Hyderabad Metro as a role model for the country in terms of technology and passenger amenities, N V S Reddy, MD of the Hyderabad Metro Rail Ltd is confident that the first section of the Rs 14,100 crore project would be commissioned by the end of 2014. It will be 71.16 Km long elevated metro and involve construction of 66 stations.

Reddy was also associated with the implementation of the Konkan Rail project on the west coast of India .

What are the unique features of Hyderabad Metro that set it apart from other metros in the country?

Apart from the design of the elevated stations, we are introducing several modern features here. We are not looking at Metro as a stand-alone engineering project but as an integrated and seamless public transport system.

Some of the unique features are seamless travel facility through integration with rail terminals, bus depots, local train stations, "merry-go-round" feeder buses to nearby colonies and business areas , eco-friendly stations with skywalks, ramps and escalators, low energy consumption and significant reduction in noise and air pollution, ultra-modern, light-weight, air-conditioned coaches and state-of-the-art signaling systems for high safety standards.

What kind of security measures are you incorporating in the project?

We have learnt from the experiences in Delhi and Bangalore. We are in touch with the Union Home Ministry regarding additional security measures like installation of video cameras in coaches and CCTVs in stations.

What is being done to give a local touch to the Metro, in view of the apprehension in some quarters that the project will deface the historic city?

In fact, this project gives us an opportunity to re-design and rejuvenate the core of the city which has been decaying and degenerating. It happened with Delhi also. Chandni Chowk, which was decaying, has been revived to its past glory, thanks to the Metro.

Similarly, Hyderabad Metro is not just a Metro but an urban rejuvenation and re-design effort to transform Hyderabad into a competitive global city. Each of the metro stations will be designed in such a way as to reflect the city’s heritage. At 25 stations, we have identified 2 to 3 acres of government land where recreational facilities will be created for the families.

Environmentalists also believe that the project would damage the city monuments and heritage structures ?

There is lot of misinformation on this. We are not touching any of the nine heritage structures near our corridors. A minimum distance of 50 feet is being maintained from the compound walls of the identified heritage structures. Regarding their suggestion for going underground, it is not technically feasible, given the terrain here. Tunneling in an urban environment poses lot of technical issues.

There is concern over the delay in executing the project. What is the status now?

A project of this magnitude is being taken up for the first time in the country under PPP model. It is a complex and high-risk project where issues like land acquisition and environmental objections are bound to crop up. However, we have been able to sort out a majority of them and are now proceeding on a war-footing to complete it. Our concern is to minimise the inconvenience to the road users.

Over 400 engineers are working overtime and we have introduced new technological alternatives in this project. We are learning from the experiences of Delhi and Bangalore metros and trying to improve upon them.

At one stage, the project came under cloud because of the prolonged Telangana agitation. What has been the impact?

It is a five-year project and we have lost about four months time because of delays. But, we are confident of making up for the loss. Whether Andhra Pradesh remains united or separated, the importance of Hyderabad Metro will remain. Even if separate Telangana state is formed, this will be the first major infrastructure project of the new state.

People do not see much work on the site. How do you respond to doubts over the timely completion of the project?

Over 70 per cent of the work is being done off site at the casting yards and they are brought to the site at night and assembled. Only construction of piers is done at the site. We are using pre-cast segmental construction where the components of the viaducts are pre-fabricated at the casting yards. Topographical surveys and geotechnical investigations have been completed and engineering and design works are nearing completion. As far as land is concerned, we are falling short of only 15 acres. The government is vigorously addressing this issue.