The action of the Supreme Court in the exercise of its inherent power under 142 of the Constitution and ordering the release of AG Perarivalana convict in the The case of the assassination of Rajiv Gandhi, elicited mixed reactions. A Congress spokesman in Tamil Nadu called the verdict a victory for terrorism and the power of money. His reaction was bolstered by the state Congressional Committee calling for a peaceful demonstration for an hour, with protesters holding their mouths gagged.
Despite these small ripples, the Supreme Court’s verdict was widely welcomed as it ended difficulties that spanned more than two decades. This also ended the battle between the Raj Bhavan and the Secretariat.
After the assassination of Rajiv Gandhi, the attackers were tried under the infamous Terrorist and Disruptive Activities (Prevention) Act 1987 under which a closed trial was conducted. The act also allowed confessions made before a police officer not of the rank lower than superintendent as admissible in evidence, unlike trial for offenses under the Indian Penal Code. To everyone’s astonishment, the 26 defendants were sentenced to death by the Special Court for various offences, including under TADA (1998).
The provisions of TADA only required an appeal to the Supreme Court. Fortunately, the SC found that the offenses under TADA were not established since there was no basis to prosecute for acts of terrorism. It also changed the death penalty for 22 people and confirmed the same only for Nalini, Perarivalan, Murugan and Santhan (1999).
They petitioned the governor of Tamil Nadu under Article 161. Fathima Beevi, then governor of Tamil Nadu, and former SC judge, dismissed their petition without any advice from the cabinet headed by Mr Karunanidhi. The Madras High Court has ruled that the Governor cannot exercise the power of pardon without the advice of the Council of Ministers. The ball was back in the government’s court. The Karunanidhi government was targeted as soft on the LTTE. The cabinet advised the governor to grant a reprieve only to Nalini Sriharan and dismissed the cases of the other three, including Perarivalan.
Granting a reprieve to those sentenced to death, even in the exercise of full powers by a governor, has limits. In 1978, Parliament amended the Code of Criminal Procedure and introduced Section 433A according to which, in such cases, prisoners cannot be released from prison unless they have served at least 14 years in prison. Perarivalan and the other two convicts appealed to the President with a clemency plea under Article 72. Two successive Presidents of India – KR Narayanan and APJ Abdul Kalam – passed no clemency orders. But all of a sudden, their pleas for pardon were denied after an 11-year delay by President Pratibha Patil. At this point, the TN Assembly took the extraordinary step of passing a resolution asking the President to grant clemency to the seven defendants (2011).
As they were about to be executed, the convicts moved the HC from Madras challenging the execution of the death warrant issued against them. The cases were transferred to the SC, which ruled that the President’s action of not considering the plea for clemency within a reasonable time was inappropriate and that since the three prisoners had been on death row for 11 years old, their sentence should be commuted to life imprisonment.
Meanwhile, on February 19, 2014, the TN Cabinet advised the Governor to grant a reprieve to the seven defendants. The Union of India filed a petition and obtained that the cases be transferred to the SC. The Constitutional Bench held that a life sentence means imprisonment for the rest of one’s life, but convicts can seek remission under Section 432, CrPC. This applies to cases where death sentences are commuted.
Again, all demanded a discount from the governor. The state cabinet also advised the governor to grant a pardon. Since there was no response, Nalini moved the court. The Madras HC declined to issue instructions and said, “…the Governor of the State is protected from questioning or being held accountable in court in connection with the exercise of his constitutional functions and duties.” When Arputhammal, Perarivalan’s mother, applied for parole, the court, noting the inordinate delay, observed, “The Governor of TN, a constitutional authority, cannot sit on the state’s recommendation regarding the release of seven lifers in the Rajiv Gandhi assassination case. for so long” (July 2020). The court was told that the governor was awaiting the final report from the CBI’s Multidisciplinary Monitoring Agency (MDMA). The MDMA was created in 1998 on the recommendation of the commission of inquiry of judge MC Jain, who had investigated the conspiratorial aspect of the assassination of Rajiv Gandhi.
The role of MDMA itself was criticized by the SC in January 2018 and it observed that the agency did not appear to have made “much progress”. Assuming that his final report will contain material adverse to the seven defendants awaiting remission, the question of reopening the case against them will not arise because they had already been convicted of murder and conspiracy. Article 20(2) of the Constitution guarantees that no one may be prosecuted and punished more than once for the same offence.
Once again, the process of granting clemency to the seven defendants began with a resolution passed by the TN Assembly on September 9, 2018. On the same day, the State Cabinet advised the Governor to grant a reprieve to the seven prisoners. No action was taken by the governor. Compelled by the court, the governor said the case should be handled by the president. It was at this point that the matter returned to CS. It was eventually decided that the power to grant pardons belonged to the governor and he was bound by the advice of the state government. The court also ruled that the governor’s action in delaying the case for more than 2.5 years was unacceptable. Exercising its authority under section 142 and taking into account all the relevant circumstances, the SC ordered Perarivalan’s release.
The Indian penal system is undoubtedly reformative and not retributive. The SC ruled on this issue by stating that “a barbaric crime should not be meted out with a barbaric punishment”. Those who oppose the reprieve given to Perarivalan do not understand the Indian penal system and are unwilling to see the reason for the SC order. At the end of the day, in this country, when an offense has political upheavals, it is political considerations rather than criminal case law that deal with the penalties attached to it.
It is unconscionable that successive governments led by Congress and the BJP have been able to manipulate the governor’s office with instructions from the Union Home Office. This perverted the constitutional scheme. It is also surprising that successive governments of the Center have seemed guided in this case by geopolitical considerations rather than by the laws of this country. It was their indecision – or rather the abdication of responsibility – that led the court to decide the issue. It is not as if Judge Nageswara Rao is not exposed to these problems. As a Senior Solicitor, he defended several cases for the State of Tamil Nadu led by Jayalalithaa before the review committee deciding on the maintainability of POTA offenses against Tamil nationalist leaders like P Nedumaran, Vaiko and others .
The question now is whether the other six prisoners will receive the same relief or if there will be an ugly confrontation between the state government and the governor once again. Hopefully wisdom prevails and the governor’s office is not manipulated for narrow political considerations.
The author is a former judge of the High Court of Madras