New Delhi
Last week the Supreme Court released six of the seven killers who were life convicts in the Rajiv Gandhi assassination case on May 21, 1991, exercising its extraordinary power under Article 142 of the Constitution to do substantive justice to the convicts.
In doing so the court has left unanswered several issues in criminal jurisprudence.
The seven convicts were Nalini, her husband Murugan, Santhan, Periarivalan, Robert Pius, Jayakumar and Ravichandran. The top court ordered Perarivalan’s release in May this year. Six others were released in terms of the same judgment.
Subsequent to the release, four of them Murugan, Jayakumar, Santhan and Robert Pius were kept in a special refugee camp in Tamil Nadu.
Unanswered issues
When the Tamil Nadu government recommended the release of the 7 convicts in February 2014, within a day of a Supreme Court judgement, the Centre rushed to the court and obtained a stay against their release.
The main contention was whether the state was competent to grant remission in a case investigated by CBI, a Central agency with prior approval. The court in a later judgment held concurrence of Centre was essential while granting remission.
This question was not considered in the judgments of May and November verdicts of the Supreme Court in ordering release of the convicts.
Can the Governor exercise remission powers in cases involving foreign nationals?
As four of the seven convicts were Sri Lankan nationals the issue whether Governor can exercise remission powers on foreign nationals involved in terrorist acts was also not considered.
Once the court held that the Centre’s approval was necessary, it was not proper to find fault with the Governor for forwarding the recommendations (though after inordinate delay) to the President.
The court instead of exercising powers under Article 142 ought to have requested the President to decide on the state’s recommendations. If that had been done Centre would have had a say on it.
Further, once the court exercised its powers and commuted the death sentence on three of the four convicts, further remission by the executive is permissible.
Before the court intervened, the President rejected the mercy plea of three convicts and commuted it into a life sentence except that of Nalini.
Need to apply a uniform yardstick in terrorism-related offences
The Supreme Court also failed to apply a uniform yardstick in terrorism-related offences.
For example, in the case of physically handicapped former Delhi University professor G N Sai Baba, accused of Maoist links, the Supreme Court has suspended a Bombay High Court order acquitting him.
While suspending the order, the court took into consideration the allegations of his terrorist links though it was confined to his possessing literature and documents.
Centre files review
The Central government has since filed a petition seeking review of the November 11 verdict releasing the six convicts.
The order granting remission to the convicts who had assassinated the former Prime Minister was passed without affording an adequate opportunity of hearing to the Union of India (which was a necessary party) or being formally impleaded as a party to the petition, the review says.
Case has international ramifications
Furthermore, granting remission to foreign nationals, duly convicted in accordance with the law of land for the gruesome offence of assassinating a former PM, is a matter which has international ramifications and falls squarely within the Union’s sovereign powers.
There is thus a substantial cause warranting a review and an open hearing, wherein the Union could be afforded an opportunity to place the correct and germane facts to assist the court t to arrive at a just and correct decision i.e., why the six convicts were not entitled to relief by this court.
Will have huge repercussions on law and order, peace and criminal justice system
The Union’s assistance is of paramount importance as the matter has huge repercussions on public order, peace, tranquillity and the criminal justice system of the country. Whether these unanswered issues would be resolved in the review remains to be seen.
Case background
On May 21, 1991 the Liberation Tigers of Tamil Eelam (LTTE) used a woman suicide bomber Dhanu to blow up Rajiv Gandhi at an election rally at Sriperumbudur. Dhanu died in the blast.
Forty-one people were chargesheeted by the SIT for Rajiv Gandhi’s killing under the Terrorist and Disruptive Activities (TADA) Act.
Of these, three – LTTE Chief Velupillai Prabhakaran, his intelligence chief Pottu Amman and LTTE women’s wing leader Akhila – were declared proclaimed offenders and they died later.
Twelve others, including 11 Sri Lankans, committed suicide. The trial was conducted against the remaining 26 Indians and 4 Sri Lankans.
The trial court in Chennai awarded death penalty to all the 26 accused in January 1998.
Reporter reminisces
Prior to the verdict, this correspondent was part of the team headed by SIT chief Karthikeyan that selected an ideal spot for erecting a temporary press enclosure near Poonamallee prison where trial was held.
Over 200 journalists from all over India and abroad had descended there on that day to know the historic verdict.
The judgment was completed against all the 26 accused around 6 pm on January 28, 1998. The CBI legal team briefed the media that 26 accused were sentenced to death. Except for a couple of reporters, others left for their offices.
A 1500-word exclusive report appeared on the front page of The Hindu next day. The next day during the CBI press conference the media blamed the agency for being partial to one newspaper.
The reporter had to convince others that it was due to his initiative and that the CBI had nothing to do in making a judgment copy available to him!
In its May 1999 verdict, the Supreme Court upheld the death sentence on four, acquitted 19 and released the other three.
By this time, I was transferred to New Delhi to cover the Supreme Court and hence I had the opportunity to report even these proceedings. From then on, this case had a chequered history.
The review petitions of Murugan, Santhan, Perarivalan and Nalini were rejected In October 1999.
LIST OF DATES
21.05.1991 Rajiv Gandhi the then Prime Minister was assassinated in Sriperumbudur.
28.01.1998 TADA Court convicted 26 accused to death under section 302 of IPC amongst other charges.
11.05.1999 Supreme Court confirmed the sentence of death passed on Nalini, Santhan, Murugan and Arivu and the death sentence passed on Robert Payas, Jayakumar and Ravichandran was altered to imprisonment for life. Conviction and death sentence passed by the designated court on the remaining accused by TADA court on the remaining accused was set aside.
8.10.1999 Review petition filed by the convicts in the Supreme Court was dismissed.
27.10.199 The 4 death convicts filed mercy petitions before the Governor of Tamil Nadu under Article 161 of the Constitution. Governor rejected the petitions on 27.10.1999.
25.11.1999 High Court admitted the writ petitions in Madras High Court challenging the rejection of their petitions to the Governor of Tamil Nadu on the grounds that the advice of the Council of Ministers was not sought. The High Court set aside the order of the Governor April 2000 Governor commutes Nalini’s death into life
03.08.2001 President rejects mercy plea of Perarivalan, Murugan and Santhan
18.02.2014 Supreme Court commutes death penalty of these 3 convicts into life
19.02.2014 Tamil Nadu government recommends to Governor to grant remission and release of all 7 convicts
18.04.2018 Centre rejects this proposal
06.09.2018 Supreme Court disposes of Perarivalan, petition granting liberty to Governor to decide on TN fresh proposal to grant remission
11.05.2022 SC orders release of Perarivalan exercising powers under Article 145.
11.11.2022 SC releases remaining 6 convicts extending benefit of May 11 verdict.
17.11.2022 Centre seeks review of the judgment
