Staying the Noose

To kill or not to kill, that was the question. To the rest of India, the assassination of former Prime Minister Rajiv Gandhi is ancient history. In Tamil Nadu, however, every once in a while, it becomes a live issue laced with high drama, politics, and emotion–genuine or not.

When I walked into the chambers, a colleague had looked at me and said, “The man is coming.” “The man” of course, was the irrepressible and enigmatic counsel for the defence, Ram Jethmalani. He was coming to appear before the Madras High Court in the petition filed by the convicted killers of Rajiv Gandhi, to stay their hanging that had been scheduled for September 9, 2011, on the ground that there had been an inordinate delay by the President in disposing of the clemency petition.

This is nothing new for Mr. Jethmalani. He has stood between the hangman and his prize, between the state and the dissenter (often, he has been the dissenter himself), and between the accused and the judgement of a society that believes that in certain cases, they can usurp the courts’ function and proclaim guilt. Echoing Erskine’s famous defence of himself in the trial of Thomas Paine, he has always believed in the duty of a counsel to his client, and that the “end of liberty” is the day that an advocate is allowed to say whether he will or will not stand between the State and the subject arraigned in the court.

​The reputation has been well earned. There have been few lawyers in independent India who can match his legal learning, experience, and sheer rhetorical brilliance. His work ethic is the stuff of legend for not one, but many generations of lawyers.

The next day, the matter was called before a Bench of Justices C. Nagappan and M. Sathyanarayanan. What should have been a normal writ petition was a political issue. As the Court sat to deliberate, the Assembly located nearby was considering the same issue. The counsel arrived early and sat inside the courtroom. By 10:15 AM, the courtroom was packed. By half past ten, which is time at which the court sits, the corridor outside was overflowing.

I have only seen Ram Jethmalani argue once before. That sight was enough to inspire a second visit. Considering his advancing age, the thought that this might be my last chance to see him in action was at the back of my mind. He, of course, would emphatically disagree. His remarkable discipline and fitness at eighty-seven will ensure that no one is surprised if he is still alive and appearing before some court on his centenary.

Little did I know that the heavy price to hear him a second time – so packed was the courtroom with reporters, the preachers of Tamil pride, lawyers with no other work, and the other gentry of the Bar. A large number had come with the singular purpose of seeing the one and only “Ram Jethmalani” with the halo and the horns!

The judges walked in a little late and you could see their unease at the packed courtroom. They most definitely would have discussed the matter and decided their course of action before they reached but then such a scene can be intimidating even for judges. The only man who did not seem intimidated was the man given the responsibility of opening the arguments!

Cool, calm, and composed, he began with a courteous opening, and then posed the question before the Court. His mannerisms would flatter a corpse!
“Your lordships today are concerned with what I take the liberty of describing as a moral, constitutional, and civilisational issue.”

The facts of the case are broken down to their absolute bare essentials–no frills. The issue of delay in execution of the death sentence is brought into the picture by introducing the judgement of Justice Chinappa Reddy in T.V. Vatheeswaran v. State of Tamil Nadu and its subsequent overruling–what he described as a partial overruling–in Sher Singh v. State of Punjab. No attempt was made to conceal the precedents, but they were arranged in such a manner that the judges had a way out if they chose to walk against the strict doctrine. He added:
“Your Lordships are of course constrained to decide this case under the existing framework of law, in which the death sentence is constitutional; however, perhaps your Lordships will be more hospitable to a claim that the death sentence has been unfairly applied in this particular case.”
That, ladies and gentlemen, is English as she is meant to be spoken!

In a mere half an hour, he had mesmerised the Court and all present, with his impeccable diction, logic, and oratory. A few others spoke, but for the section of the crowd (including myself) that had not been forced to come by newspaper bosses or come in support of questionable Tamil pride, it could well be said Roma locuta est, Causa finite est! (Rome has spoken, the case is finished!)

The man, who has helped many cheat the hangman’s rope, has himself kept the Reaper at bay–with convincing argument no doubt, and a fitness regimen that still allows him to play badminton every day! I can’t help but remember Churchill’s famous reply to a reporter, “I am ready to meet my maker; whether my maker is prepared for the ordeal of meeting me is another matter.” The maker himself might have ‘to kill’ for that privilege. Mr. Jethmalani however, seems in no hurry and we seem to be the beneficiaries of the interim stay granted on that final judgement as he continues to dazzle Parliament and the courtrooms around the country. 

When the last sentence of the order was pronounced, the courtroom resembled the venue of an IPL final–with cheering, hooting, and whistling! The crowds made way for the day’s hero: he greeted them with gracious pranaams, or should I say vanakkams (after all, his political party was called Pavithra Hindustan Kazhagam), as he walked out to continuous chants of “Ram Jethmalani Varzhigai!” (“Long Live Ram Jethmalani!”) I could not agree more.

The author is grateful to V. Niranjan, an advocate of the Madras High Court, for his verbatim recollection of the arguments presented in court.
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(Suchindran B.N. is an advocate at the Madras High Court.)

The article was originally published by My Law Blog.