The Tamil Nadu Cabinet has passed the buck to Governor Banwarilal Purohit by recommending the release of all the remaining seven life convicts in the Rajiv Gandhi assassination. In doing so, it has learnt from the experience of late Chief Minister J Jayalalithaa whose attempt to release them by using the executive power was shot by the Centre. Now, the Edappadi government has sought to get them out by citing the Supreme Court order of September 6 asking the Governor to consider the plea of one of the accused Perarivalan for mercy by invoking Art 161 of the Constitution.
Jayalalithaa’s proposal of February 19, 2014 to release all seven came a day after the Supreme Court commuted the death sentence of three of them—Murugan, Santhan and Perarivalan—on the ground of inordinate delay by the President in considering their mercy plea.
As Jayalalithaa sought to exercise the power of remission under Sec 432 and 433 of the Criminal Procedure Code which stipulates prior concurrence of the Centre in cases prosecuted by a central agency like the CBI in this case, she wrote to the Centre. The Centre refused to give concurrence on the ground that Rajiv was assassinated by the LTTE, an international terrorist organisation and release the convicts will set a “dangerous precedent” and will have “wide international ramifications”.
The September 6 observation of the three-judge Supreme Court that the Governor may consider Perarivalan’s mercy petition pending since December 4, 2015 and take a decision as he deems fit, has opened a window of opportunity to the government to release of them.
The three-judge bench has gone by the December 2015 order of a five-judge Constitution bench which ruled that in cases investigated by the CBI, the concerned state government wanting to grant remission or pardon, should get prior concurrence of the Centre. The bench also held that the sovereign power of the Governor, or the President as the case may be, to grant pardon or remission under Art 161 is untouched by the ruling. It was on this basis, the apex court asked the Governor to consider Perarivalan’s application made under Art 161.
In recommending the release of all the seven, the Tamil Nadu government has said that the Governor, being the executive head, is bound to act on the advice of the Cabinet. At best, he can send back the proposal for reconsideration. Even so, if the same proposal is made again, he is bound to accept.
On the surface, the government is right. However, as the Centre has opposed and very strongly, the release of the convicts, the Governor will surely consult the Union Home Ministry and the Law Ministry as well as the Attorney-General of India.
Advocate Prabhu, who appeared for Perarivalan, says the Governor can seek the opinion of the Centre only if he has reason to believe that the government’s decision is mala fide. It obviously cannot be as it has the support of all the parties in Tamil Nadu.
It is one thing to plead for the release of the seven convicts, but to say they were wrongly convicted is an insult to the judiciary. The Supreme Court in1998 found all 26 guilty and confirmed the death penalty for Nalini, Murugan Santhan and Perivalan and awarded various terms to others. The court also held that there is nothing on record to show that the intention to kill Rajiv Gandhi was to overawe the Government. Therefore, it was not a terrorist act under TADA (Act). Nevertheless, it held it to be murder most foul and confirmed the death for four.
It is a different matter Nalini got Governor’s pardon on the ground that her daughter born in jail should not be orphaned as Murugan was also in the death row then.
As the apex court had held it was not a terrorist act, the Centre while rejecting Jayalalithaa’s move to release all of the seven, said the assassination was carried out by a foreign terrorist organisation (LTTE) and releasing the convicts will set a bad precedent and will have “international ramifications”. Obviously India cannot seek extradition of Mumbai blast mastermind Hafees Sayeed from Pakistan if it releases the Rajiv killers.
There are other implications. Except for Nalini and Ravichandran, the other five are Sri Lankan nationals and were members of the LTTE who came to India in the garb of refugees to find safe houses and do other groundwork for the assassination. Where will India send them? Even if Sri Lanka agrees to take them now that the war with the LTTE is over, will they be willing to go back?
Whatever the implications, humane considerations should prevail. They have spent 27 years in jail whereas even the killers of Mahatma Gandhi killers came out after 14 years. The LTTE is no more. So are Prabhakaran, Pottu Amman, Akila, the prime accused . Dhanu died by detonating the belt bomb to kill Rajiv Gandhi. Other members of the killer squad like Sivarasan and Shuba committed suicide in Bengaluru on being encircled.
The immediate family of Rajiv Gandhi is not opposed to the release of the seven. The then SIT chief and CBI director D R Karthikeyan has also said he has no objection to the release of the c convicts.
Such being the case, the Governor should temper justice by mercy and set them free.
The only ticklish question is how do we do justice to 15 died along with Rajiv Gandhi, nine of them police officers?
May 21, 1991
Former Prime Minister Rajiv Gandhi assassinated at an election rally by an LTTE suicide bomber in Sriperumpudur.
May 20, 1992
Special Investigation Team (SIT) of the CBI files the chargesheet in the case before the TADA Designated Court at Poonamallee.
Jan 28, 1998
TADA Court awards death sentence to all 26 accused.
May 11, 1999
Supreme Court confirms death sentence awarded to Nalini, Santhan, Murugan and Perarivalan, commutes death sentence of three others to life, holds 19 others guilty of lesser offences after setting off the time they had already spent in jail against their sentences
Oct 17, 1999
The four death row convicts send clemency petitions to Tamil Nadu Governor.
Oct 27, 1999
Governor Fatima Bivi rejects their petitions without Cabinet approval.
Nov 25, 1999
Madras High Court quashes Governor’s order, directs her to pass a fresh order after getting the State Cabinet’s views.
Apr 19, 2000
The M Karunanidhi Cabinet recommends commutation of the death sentence of Nalini alone and the Governor accepts it.
Apr 28, 2000
State government forwards clemency pleas of Santhan, Murugan and Perarivalan to the President.
Aug 12, 2011
The President rejects their clemency petitions.
Feb 18, 2014
Supreme Court commutes their death sentence on ground of delay in disposing their mercy pleas. The court also says the state government may consider releasing the convicts under the powers vested with it.
February 19, 2014
The Jayalalitha Cabinet decides to immediately release Santhan, Murugan, Perarivalan, Nalini, Robert Payas,, Jayakumar and Ravichandran; sends its decision to Centre under Section 435 CrPC for concurrence. The UPA Government rejects it, gets stay from SC.
A five-judge Constitution bench holds that Tamil Nadu cannot unilaterally determine the remission of sentences as the cases have been investigated by an agency of the Centre, namely the CBI/ The bench also holds that life sentence means for the rest of life of a convict. Therefore, his right to seek remission from the President of the Governor cannot be touched as it is a constitutional remedy.
Sept 6, 2018
Based on this judgment, a three-judge Supreme Court bench asks Tamil Nadu Governor to consider the petition filed by Perarivalan for remission of sentence. Within two days, the State Cabinet recommends release of all seven convicts.
— The writer is a senior journalist and author of The Prabhakaran Saga