Freeing Rajiv Gandhi’s Killers: Redux

1992
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With assembly polls due in May, the Jayalalithaa government has once again decided to release convicts serving sentences for their role in the assassination of the former prime minister. But will the center give in?
By R Ramasubramanian


With assembly elections due on May 16, the Tamil Nadu government under Chief Minister J Jayalalithaa has done a repeat of what it did ahead of the 2014 Lok Sabha elections. It has decided to release all seven convicts in the Rajiv Gandhi assassination case languishing in state prisons for the past 24 years and more.

On March 2, K Gnanadesikan, chief secretary of Tamil Nadu in his letter to the Union home secretary pointed out that the state government had decided to remit the life sentences of AG Perarivalan, Murugan, Santhan, Nalini, Robert Payas, Jayakumar and Ravichandran and release them as they had already served over 24 years in prison. Under Section 435 of CrPc, the state has to consult the centre before releasing prisoners who are prosecuted by the CBI or sentenced under a central law.

On February 19, 2014, two months before the Lok Sabha elections, Jayalalithaa had made a similar attempt and written a letter to the then UPA government even issuing a three-day deadline stating that if the centre does not give its concurrence her government will re-lease the convicts. The reason cited by Jayalalithaa for pushing for the release of the prisoners was that on February 18, 2014 while commuting the death sentences of Perarivalan, Murugan and Santhan to life imprisonment, a division bench of the Supreme Court headed by Justice P Sathasivam had opined that as far as their release was concerned it was up to the “appropriate government” to take a call.

ISSUES BEFORE COURT

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Alarmed by Jayalalithaa’s move, the Manmohan Singh government immediately rushed to the Supreme Court and a three-judge bench while staying the Tamil Nadu government’s decision referred the matter to a Constitution Bench and framed seven issues for the bench to decide upon. These included: (a) whether once powers of remission under Article 72 by the president or under Article 161 by the governor or Under 32A of the Supreme Court is exercised, is there any scope for further consideration for remission by the executive? (b) if there could be a special category wherein after death penalty has been commuted to life imprisonment, such a convict is put beyond the applicability of remission of sentence and he or she should remain behind bars in excess of life term of 14 years? (c) what does the term “appropriate” government mean? (d) can the state government release a convict who was tried un-der central laws like TADA and the case probed by a central agency like the CBI? and (e) as far as “consultation” goes does it mean it is mere “consultation” or “concurrence”?

A five-judge Constitution Bench headed by Justice HL Dattu delivered its verdict on December 2, 2015. It ruled that the state government does not have any powers to release those who were tried under central laws in a case investigated by a central agency (the Rajiv Gandhi case was handled by the CBI and TADA was the law applied). It further observed that in this case the “appropriate government” is the central government since the case was handled by a central agency and central laws were invoked.

However, the Bench said that there is no special category which is beyond the applicability of remission of sentence for those whose death sentences were commuted to life imprisonment. The Bench also made it clear that the powers enjoyed by the president and governors for granting pardon and release are untouched. The Bench also ruled that as far as matters like this are concerned, the word “consultation” means “concurrence” and the state government has to get the concurrence of the centre and mere consultation is not sufficient.

The Constitution Bench, however, reverted the main case—the central government’s writ petition against the Tamil Nadu government’s February 2014 decision to release the seven killers—to the three-judge bench. But so far, the three-judge bench has not been constituted and the Jayalalithaa government did not take any initiative to expedite the process of setting it up.

SEVERAL TWISTS

It may be recalled that a TADA special court in Poonamalee, near Chennai, had awarded death sentences to all the 26 accused in the Rajiv Gandhi assassination case on January 28, 1998. But the Supreme Court released 19 persons and awarded death sentences to four (Murugan, Nalini, Perarivalan and Santhan) and convicted three (Robert Payas, Jayakumar and Ravichandran) to life imprisonment. In 2000, the then Tamil Nadu governor Fathima Beevi commuted the death sentence of Nalini to life but she rejected the mercy pleas of other three. They moved the president for mercy.

After a long delay, President Prathiba Patil rejected their mercy pleas in August 2011 and arrangements were made in the Vellore Prison to hang the three.

However, a division bench of the Madras High Court on August 30, 2011 stayed their execution. Then the matter was transferred to the Supreme Court.

The big question—why is Jayalalithaa repeatedly pleading for the release of the prisoners? The answer is simple: once considered a staunch critic of the LTTE and even the Sri Lankan Tamils, Jayalalithaa took a u-turn once she realized that it was a vote-catching and emotive issue in state polls. The change in her stance was visible after she came back to power in May 2011.

STRIDENT POSTURING

In fact, Jayalalithaa twice piloted resolutions in the state assembly demanding that the centre impose an economic embargo on Sri Lanka for human rights violations against Tamils in Jaffna. Jayalalithaa’s strident posturing even forced the centre to send back Sri Lankan military personnel who were in Tamil Nadu for military training. Even an under-14 cricket team from Sri Lanka was sent back from the Chennai airport!

But will the center give the green signal for the release of the prisoners? The Narendra Modi government took a very strong position last year against their release in the Supreme Court and cautioned the apex court that if Jayalalithaa has her way it will open the flood gates with similar acts of clemency.

One interesting difference between Jayalaithaa’s February 2014 letter and the latest note is that unlike on the previous occasion she has not set a deadline for the centre to decide. Senior bureaucrats believe Jayalalithaa is simply playing to the gallery with vote bank politics on her mind. The Lankan Tamil issue has a resonance in Tamil Nadu.

Curiously, despite its keenness to free them, every time any of the seven convicts have requested for parole, the state government has opposed it tooth and nail in the court. On March 8, when Nalini asked for a three-day parole to attend the 15th day ceremony of her dead father, the government strongly opposed it. But the High Court granted her one-day parole. So, in matters which are supposed to be under the jurisdiction of the state government, the Jayalalithaa government continues to be harsh and denies relief to the seven.

Observers in Chennai believe that the Narendra Modi will not budge and permission will not be given to the state government. Already Union Home Minister Rajnath Singh has indicated the union government’s mind when he told parliament on March 3 that the central government will take a decision keeping in mind the apex court’s observations in this case.

Tamil Nadu goes to the polls on May 16 and one can easily understand the priorities of Jayalalithaa. Many see her letter on releasing the prisoners as yet another gimmick to mop up votes.

But whether this move will help Amma is highly debatable.

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