Above: Rahul Gandhi and Priyanka at their father’s memorial. Both have forgiven his killers/Photo: UNI

The Tamil Nadu government’s decision to recommend the release of the seven convicts in the Rajiv Gandhi assassination case smacks of a populist move which endangers the rule of law. It has caused deep divisions within the legal community on whether it is justified or not.

R Ramasubramanian in Chennai

Anusia Deisi was a 31-year-old sub-inspector of the police on the night Rajiv Gandhi was killed in a suicide bomb attack at Sriperumbudur, near Chennai, in May 1991. Fourteen people, including nine police personnel, were killed in the attack that took place just as the former prime minister got out of his car to greet the Congress party supporters who had gathered for the midnight election rally. Deisi was quite close to Rajiv when he alighted from the car but the latter soon moved on. By the time the suicide bomber, Dhanu, bent, seemingly to touch Rajiv’s feet in reverence, but in reality to activate the bomb in her belt, Deisi was some distance away, enough to just survive the attack. Three months ago, she retired as additional superintendent of the Tamil Nadu police.

In an interview to a leading Tamil daily recently, she recalled the events vividly. “I was heading a 10-member women police officers’ team to control the women’s section at the rally. I was very near to Rajiv when he arrived and then he moved on, greeting people. A couple of minutes later, there was a huge blast and the next thing I remember was that I was in hospital. There were several pellet shrapnels pierced in my body and the left part of my chest was completely burnt and I lost three fingers. The pain was unbearable. I was there in the hospital for three months. Then I was back on duty but the worse was yet to come.

“I was put in charge of guarding Nalini’s (the first accused in the case) room where she was brought in for delivery. Words are inadequate to describe this humiliation. I could do nothing but cry at having to guard a woman who killed not only our national leader but also snuffed out 14 other innocent lives in that rally. Now they want to release these seven killers … Let them release … but can they bring back the lives of 15 human beings who were massacred. Now who is going to answer for my unspeakable pain and agony?”

Deisi’s anguish arises from an order of a three-judge bench of the Supreme Court. On September 6, without granting any relief to the seven convicts, the Court asked the Tamil Nadu governor to consider the mercy petition from AG Perarivalan, a life convict, saying he was at liberty to take a decision on the matter. With this verdict, the Court also disposed of the centre’s petition questioning the Tamil Nadu government’s proposal to release all the convicts.

The verdict has revived the demand, especially among Tamil Nadu’s bitterly divided political class, who seem united on the issue, and civil rights groups, who say that having spent more than 27 years in prison, all the seven convicts deserve to be released. The seven are: Nalini, Perarivalan, Ravichandran, Santhan, Murugan (Nalini’s husband), Robert Payas and S Jayakumar—the last four being Sri Lankan citizens.

Shortly after the Court left it to the governor to take the decision, the clamour for the release of the killers began to escalate, with the ruling AIADMK and opposition DMK indulging in competitive politics. On September 9, Chief Minister EK Palanisami convened a meeting of his cabinet, where it was resolved that the government would recommend to Governor Banwarilal Purohit that all the convicts be released under Article 161 of the Constitution, which gives power to the governor to release anyone convicted in any case.  While the governor on his own cannot take such a decision, he can act once he receives a recommendation from the concerned state government by way of a cabinet resolution.

On September 10, a formal communication containing separate files for each of the convicts, with signatures of Palanisami and state Law Minister CV Shanmugham appended, were sent to the governor.

It was a few days after the assassination that the case was handed over to the CBI, which conducted the probe un­der the now defunct TADA and other relevant CrPC and IPC laws.

On Jan­uary 28, 1998, a special CBI court in Chennai sentenced all the 26 accused to death.

On May 11, 1999, the Supreme Court upheld the death sentences of Nalini, Murugan, Santhan and Perarivalan and commuted those of Payas, Jayakumar and Ravichandran to life sentence while ordering the release of 19 other persons. Later, on April 21, 2000, the then Tamil Nadu governor, Fathima Beevi, accepted the mercy petition of Nalini and commuted it to life sentence. But the governor rejected the mercy petitions of the other three. On August 30, 2011, the state assembly passed a resolution urging the president of India to commute the death sentences of the three convicts. The same day, the Mad­ras High Court stayed their execution.

On February 18, 2014, the Supreme Court commuted the death sentences of all the three to life sentence. The next day, then Chief Minister J Jayalalithaa announced in the assembly that her government had decided to release all the seven convicts under Section 435 of the CrPC and she gave a three-day ultimatum to the central government to give its opinion as the case was handled by the CBI, a central agency. Jayalalithaa also warned the central government that if it did not respond within the deadline, her government would release all seven convicts.

On February 20, 2014, the UPA government approached the Supreme Court against the Tamil Nadu government’s decision and the Court stayed the release of all the convicts and referred the matter to a constitution bench. On December 2, 2015, a five-judge constitution bench headed by then Chief Justice HL Dattu ruled that in cases handled by a central agency (the CBI in this case), the convicts cannot be released by the state government and the centre is the appropriate authority to decide on the matter. The bench also made it amply clear that Article 161 of the Constitution (which gives power to the governors to release anyone in any case), Article 72 (which gives the same power to the central government) and Article 32 (which also gives the same power to the Supreme Court) are left untouched.

Legal opinion is sharply divided on the pardon powers of the governor under Article 161 of the Constitution. One view is that the governor exercises discretionary powers in granting pardon, but this cannot be done independently. He will also have to abide by the “aid and advice” of the council of ministers. Since the state government had already decided on the matter, the governor must take a decision as early as possible though no time limit has been fixed.

The fact that the seven convicts were involved in the killing of a former prime minister is an important consideration. Further, that they have been in jail for over 27 years and some of them were in solitary confinement pending their death sentence as well as the long delay in disposal of mercy petitions by the President, which led to the apex court commuting the death sentence of three, should weigh in favour of their release.

Senior lawyer for the state government Rakesh Dwivedi cited the release of Gopal Godse in the Mahatma Gandhi assassination case while trying to drive home the point for the release of Rajiv’s killers in the Supreme Court. Nathuram Godse’s brother, Gopal was a conspirator in the Mahatma Gandhi assassination case and was sentenced to life, but was released in October 1964, 16 years after the Mahatma’s killing.

But senior advocate Mohan Parasaran, who as solicitor general moved the apex court on February 20, 2014, and got a stay on the release of the seven convicts, says that there is no bar on the governor on referring the matter to the president. Others refer to the lack of a timeframe for the governor to take a decision on these matters.

“There is no time bar. But if it is an endless one, then the concerned parties can still go to the Supreme Court,” says R Prabhu, a practising advocate in the Supreme Court.

According to former Attorney General of India Soli Sorabjee, the governor need not consult the central government. “He should act on the advice of the council of ministers of the concerned state government and not heed the advice of others. Here the Tamil Nadu government has recommended the release of seven convicts and the governor has to accept it. From humanitarian angle also these seven convicts should be released because they are in jail for a long period,” he said.

There are yet others who contend that the governor can outright reject the Tamil Nadu government’s recommendation to release all the convicts. But seasoned jurists say it is highly unlikely to happen.

“In my experience I have not seen even one case wherein the governor has rejected the recommendations of an elected government’s cabinet. That is something very unusual and if it happens it is nothing but against the constitutional scheme of things in India,” says Justice D Hariparandaman, a retired judge of the Madras High Court.

Meanwhile in Tamil Nadu, the issue is more political than legal or constitutional. “Till May 1999, when the Supreme Court gave its final verdict on the case, it was a legal issue. After that it became a full-fledged political issue. Competitive politics between the AIADMK and DMK is in full flow now.

“The impending Lok Sabha elections have also added fuel to the fire. Apart from these two main political parties there are several smaller parties and sundry groups who are heavily attempting to exploit the issue to the core,” says A Shankar, a whistleblower and independent journalist.

As far as the Congress party is concerned, its president, Rahul Gandhi, has more than once said that his family had already forgiven his father’s killers. Most recently, he said in an interaction at the London School of Economics, “I and my sister, Priyanka, have completely forgiven our father’s killers. We were very upset and hurt, and for many years, we were quite angry. But, we have now completely forgiven them. It’s time for everyone to move on.”

The official stand of the Congress, however, is just the opposite. The day the Tamil Nadu government recommended to the governor that all the seven killers be released, Congress spokesperson Randeep Singh Surjewela said in New Delhi, “Bereft of who says what, as a citizen and a Congressman, we are of a clear opinion that the State cannot derelict its duty of punishing terrorists and terrorism. It is time to show the mirror of truth to Prime Minister Narendra Modi and his government who are shielding terrorists and terrorism by such acts.”

Interestingly, something that took place in 2008 and was kept under wraps for a long time was Priyanka Gandhi’s visit to the Vellore jail to meet Nalini, the accused No. 1 in the assassination case. It wasn’t until months later that the outside world came to know about it when Priyanka herself told a journalist in New Delhi, “It was a way of coming to peace with the violence and loss that I have experienced.”

While jurists debate the pros and cons of the clemency, for Tamil Nadu’s Congress leaders, it is a political dilemma. Amerkai Narayanan, an AICC member from the state, is a fierce opponent of clemency and describes thus the pardon given by the Gandhi family: “The Congress is the only party where the party is bigger than its president.”

He added that Tamil Nadu Congress Committee President Su Thirunavukkarasar also opposes the release of the seven killers but admits that there is ambivalence within the party on the matter. “The Congress party both at the centre and in Tamil Nadu has not opposed the release to the extent it should have,” he says.

The Tamil Nadu BJP is clueless and speaks in multiple voices. The state BJP’s treasurer, SR Sekar, says, “The Supreme Court has made it clear that the state government can take a decision on it. So, we have nothing to say or add to it.”

But another senior functionary of the Tamil Nadu BJP and a senior lawyer, M Kumaraguru, says, “All the seven Rajiv Gandhi killers cannot be released because the five-judge constitution bench in its detailed judgment on December 2, 2015, made it very clear that the appropriate government to take a decision is not the Tamil Nadu government but the central government.

“The constitution bench also made it crystal clear that the state governments throughout India cannot release any convict if the cases against them were conducted by any central agency and in this case, the probe was conducted by the CBI. So, how will the Tamil Nadu government release these seven convicts?”

A crucial factor that seems to have been completely overlooked is the fact that the matter is not just about the death of the former prime minister. Several police officers and security personnel were also killed in the blast.

Politicians, human rights activists and large sections of the media who are demanding the release of the seven killers rarely take into account the plethora of emotions of the families of the 14 others killed, who included nine police personnel, among them some women, who were killed while fulfilling their duty.

The relatives of any of the 14 victims could raise an objection and send the matter into another protracted battle. That probably was what the recently retired ASP Deisi meant when she said: “Let all those who are clamouring for the release of Rajiv Gandhi’s killers keep this truth also in mind.”