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Freedom to the Killer?

With the Supreme Court granting remission to Rajiv Gandhi’s assassination, legal experts and leaders debate the ramifications.

By Rakesh Bhatnagar


There has been an understandable hullabaloo over the three assassins of the late prime minister, Rajiv Gandhi, who were granted remission by the Supreme Court. The Congress-led UPA government failed to satisfactorily explain why it took 11 years to take a call on their plea for mercy.

There was outburst against J Jayalalitha, the chief minister of Tamil Nadu, when she showed extraordinary haste and directed the release of the assassins, whose death sentences had been changed to life sentences. The assassins have been behind bars for 23 years against the reasonable limit of 20 years. The Supreme Court stayed the release for a few weeks, and the case would come up for hearing in mid-March.

However, there hasn’t been much debate on the Centre’s explanation, or the lack of it, for the delays in rejecting the mercy pleas of the convicts. There’s no doubt that a time limit cannot be fixed for the executive or the president to dispose of a prisoner’s mercy petition. However, it is still expected that a decision should be taken within “reasonable” time, and 11 years can

INDIA-COURT-GANDHI

DELAY SAVES THEM FROM DEATH  (L-R) Murugan, Perarivalan and Santhan, whose death sentence in the Rajiv Gandhi assassination case has been remitted by the Supreme Court.

in no way be dubbed as reasonable by any stretch of imagination in a case where the life of a convict is involved.

FLIMSY JUSTIFICATION
As if this wasn’t serious enough, the country’s top law officer, Goolam E Vahanvati, the attorney general for India, strengthened the Supreme Court’s stance to allow the petitions filed by the three assassins, Santhan, Murugan and Perarivalan, who were to be hanged.

In his arguments, he said that “shortly after the receipt of the mercy petitions in 2000, a note was prepared but thereafter the file was lying in the drawer of some officer of the ministry of home affairs, and, hence, could not be processed”. This kind of a justification implied that the government generally took the apex court “for granted”, and thought that the argument would turn out to be a ground to claim that the delay was a legitimate one.

Since public memory is short, this would be the apt place to remind the readers about another instance, when the NDA government sought to seek a review of the judgment in the JMM bribery case. The order declared that “bribe taking (by a legislator) is not an offense, but bribe giving is”. Six months after the judgment, which paved the way for cases and trials against former Prime Minister Narasimha Rao and some of his cabinet colleagues for bribing JMM MPs, including Shibu Soren, in the early 1990s, the legal officials in the NDA regime told the court that they couldn’t expeditiously file the review petition as the ministry concerned couldn’t arrange for a typewriter.

NOT A TERROR ACT
The UPA-II’s stance on the clemency for Gandhi’s assassins and their freedom has raked up a legal debate not only over the unbridled power vested in a governor or the president, but also on the legitimacy of the death penalty.

While holding the assassins guilty of killing Gandhi at a public meeting in Sriperumbudur, a village approximately 30 miles from Chennai in Tamil Nadu, on May 21, 1991, the Supreme Court judge KT Thomas held that the assassination was due to the personal animosity of the LTTE chief, Prabhakaran towards the former Indian prime minister. LTTE was angry with Gandhi’s decision to send the Indian Peace Keeping Force (IPKF) to Sri Lanka, and the subsequent alleged atrocities of the Indian army against Sri Lankan Tamils.

The Rajiv Gandhi administration had also antagonised other Tamil militant organisations like the People’s Liberation Organisation of Tamil Eelam (PLOTE), when India had reversed the military coup in Maldives in 1988.

Ironically, in its judgment delivered on May 11, 1999, the apex court didn’t agree that the assassination, although masterminded in Sri Lanka to avenge India’s IPKF actions, was an act of terrorism against the country. But it still allowed the prosecution case to be filed under the legal provisions of the anti-terror law, TADA, which has since been repealed. The crucial aspect of the case was that a statement made by an accused terrorist to the police was admissible as evidence.

In the Gandhi case, the Supreme Court found it difficult to “conclude that the conspirators intended, at any time, to overawe the Government of India as by law established. Nor can we hold that the conspirators ever entertained an intention to strike terror in people or any section thereof. The mere fact that their action resulted in the killing of 18 persons, which would have struck great terror in the people of India, has been projected as evidence that they intended to strike terror in people”.

The court added: “We have no doubt that the aftermath of the carnage at Sriperumpudur had bubbled up waves of shock and terror throughout India. But there is absolutely no evidence that any one of the

The Chief

POWER STRUGGLE  Tamil Nadu Chief Minister J Jayalalitha’s decision to free the killers of Rajiv Gandhi has put the spotlight on the state’s jurisdiction in such cases.

conspirators ever desired the death of any Indian other than Rajiv Gandhi. Among the series of confessions made by a record number of accused in any single case, as in this case, not even one of them has stated that anybody had the desire or intention to murder one more person along with Rajiv Gandhi except perhaps the murderer herself. of course they should have anticipated that in such a dastardly action more lives would be vulnerable to peril”.

POLITICAL MOVES
The present crisis over the release of Rajiv Gandhi killers has culminated into a different kind of a legal controversy, which was propelled by the decision taken by Jayalalitha, possibly to garner votes in the forthcoming national elections, and put her political
opponent, DMK, an ally of the Congress-led UPA, on the backfoot.

If Jayalalitha acted in haste, so did the central government and Congress party. The party’s vice president and Rajiv Gandhi’s son, Rahul Gandhi, said he was shocked and “saddened” by the AIADMK’s decision. Prime Minister Dr Manmohan Singh added that he was personally against the death penalty, but if a Prime Minister’s killers are being set free, what justice can the common man expect? The PM tweeted that the “release of the killers of a former PM of India, our great leader, and other innocent Indians would be contrary to all principles of justice”.

Suddenly, the UPA sprang into action. It successfully managed a stay on the TN government’s decision, and urged the Supreme Court to review its judgment that a death convict is entitled to a remission in cases where there are long and unexplained delays in disposing of the mercy pleas.

The center might be able to argue against the release of the three prisoners by Tamil Nadu CM by stating that a state couldn’t decide the fate of convicts who were punished under the various central legislations and acts. More importantly, the government
could tell the court that the prosecution in the case was conducted by the central investigating agency, CBI.

PAST PRECEDENT
Legal experts contend that the government may not succeed. The Supreme Court is likely to retain its earlier view on remission, and also the convict’s right to seek freedom from the high walls of the prison. In the past, the court had said that two years of delay was a legally-sustainable ground to seek a reprieve by a death convict. Later, some of the judges maintained that the court couldn’t interfere in the constitutional powers granted to a Governor  and President.

However, the operative portions of such judgments said that “It is held that these provisions provide a ray of hope to the condemned prisoner and his family members for commutation of death sentence into life imprisonment”. Therefore, such orders ruled that “the executive should step up and exercise its time-honoured tradition of clemency power guaranteed in the
constitution one way or the other within a reasonable time”.

But the power to grant remission by the state has been criticized. In 2005, the country was shocked when the then governor of Andhra Pradesh and present home minister, Sushil Kumar Shinde, allowed the state’s Congress government to free a life convict, Epuru Sudhakar.

The governor said that if he was “prematurely released, his life would be safe because his wife is a sitting MLA and she is having a police security.” Another reason for the release was: Sudhakar was “a good Congress worker”.

The apex court rejected Shinde’s decision, and remarked that “the only reason why a pariah becomes a messiah appears to be the change in the ruling pattern. With such pliable bureaucracy, there is need for deeper scrutiny when power of pardon or remission
is exercised”. Wait for the Supreme Court’s final ruling on Jayalalitha.

 

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