SC has altered its previous views to free Rajiv Gandhi assassination convicts

The Supreme Court judgment on releasing the six persons convicted in the Rajiv Gandhi assassination case has contradicted its own previous rulings on the issue. When the apex court ordered the release of Perarivalan, it said the order would not apply to the other six convicts and that they would continue to be in prison. Suddenly, on November 11, 2022, the same SC has freed the other six, citing its own order in the Perarivalan case!

It is the same Supreme Court that concurred with the view of the Union Law Ministry a few years ago that these convicts could not be released, though ordered by the Tamil Nadu government. They already had the benefit of the death sentence being commuted to life and could not be given a second benefit. It has altered its view now.

The SC has now ordered the immediate release of the six convicts—Nalini, Ravichandran, Jayakumar, Suthenthiraraja alias Santhan, Murugan, and Robert Pius.

Court deviates from its earlier order

A Bench of Justices B R Gavai and B V Nagarathna pointed out that the Tamil Nadu State Cabinet decision on their premature release was sent to the Governor in September 2018, but he sent it to the Union government. The Bench referred to the judgment in the Perarivalan case — that is, his premature release by the apex court on May 18 in exercise of its extraordinary powers under Article 142 of the Constitution, citing a delay in dealing with his case. The Bench held that it equally applied to the six. The judges were also told that the six convicts had shown satisfactory conduct.

The Madras High Court held that the Governor’s signature was sine qua non under Article 161 of the Constitution. The High Court had also observed that it could not exercise extraordinary powers under Article 142 to pass similar orders.

Watch: SC frees Rajiv Gandhi assassination convicts

In its Perarivalan case verdict in May 2022, the apex court held that the State Cabinet’s advice was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution. A recent affidavit of the Tamil Nadu government agreed with the petitioners’ view that the Governor was bound by the advice of the State Cabinet.

This SC order on November 11 is in stark contrast to the court earlier agreeing with the Centre’s contention that the convicts had already received one benefit by way of commutation of sentence from death by hanging to life imprisonment. In the earlier judgment, the SC also agreed with the Centre’s stand that the state government did not have the powers to grant remission in cases where the authority filing the case belonged to the Centre and where the convicts were prosecuted under central laws like CrPC.

Thus, it can be seen that the SC has deviated from its own orders in granting release to the six convicts.

Centre’s role questioned

Manickam Tagore, Congress MP from Tamil Nadu, has raised another issue: “Why was no Union government advocate present today when the case came up? Did PM Modi support the three Sri Lankans criminals? What about the national security implications, Mr Modi? How can you close your eyes and help terrorists?”

Another senior Congress leader Randeep Surjewala has asked, “Does PM Modi and the government support the release of terrorists, who assassinated India’s PM? Isn’t this because the Modi government utterly failed to present its case to SC? Is the Modi government suffering from petty political partisanship on terrorism? Will PM Modi get the court verdict reviewed?”

The 2015 SC order

In December 2, 2015, a five-judge Constitution Bench led by then Chief Justice of India, HL Dattu, interpreted the law to hold that states cannot unilaterally remit the sentences of life convicts in cases investigated by a central agency under a central law. The SC said the state government had no power to release the convicts without the Centre’s concurrence.

The Constitution Bench of the Supreme Court, blocking the release of seven convicts in the Rajiv Gandhi assassination case, said state governments cannot remit jail terms of convicts in cases of national importance without the Centre’s approval. The court blocked the J Jayalalithaa-led Tamil Nadu government’s move to free all seven convicts and said no remission can be granted by “putting the interest of the nation in peril.”

Also read: SC answers several questions with historic Perarivalan verdict

Regretting that “lawlessness is the order of the day,” the Constitution Bench held that a state government cannot be allowed to exercise its power of remission and free convicts in cases investigated by central agencies, such as CBI and NIA, and where the offences entail death penalty or the conviction is for an offence relating to the Executive Power of the Union.

The Bench, led by Chief Justice Dattu, held that cases such as the killing of a former prime minister would mean assassinating “national figures of very high status by resorting to diabolic criminal conduct” and that “such a situation should necessarily be taken as the one coming within the category of internal or external aggression.”

The judgment, by a 3:2 majority, noted that granting the Centre overriding authority in cases of national importance “cannot be held to be interfering with the independent existence of the state concerned.” While Justice FMI Kalifulla, the author of the verdict, and Justice PC Ghose wrote the majority judgment with the CJI, Justice Uday U Lalit and Justice Abhay M Sapre concurred with them on all issues except one legal point.

The two judges differed on whether there can be a “special” category of punishment beyond 14 years in jail and whether the power of the state government for remission can be curtailed. Underscoring that life imprisonment means jail term till the end of one’s natural life, the majority verdict held that there was no bar on a high court and the top court to sentence a convict to 20 or 30 years in jail without the benefit of remission.

“Not be in the interest of society”

Referring to the Rajiv Gandhi case, the court said: “We find no scope to apply the concept of ray of hope to come to the rescue of such hardened, heartless offenders, which, if considered in their favour, will only result in misplaced sympathy and again will not be in the interest of society. Therefore, we reject the said argument outright.” It also criticised the Tamil Nadu government for exercising its power of remission “suo motu.”

Further, the Centre had informed the SC in August 2018 that the Tamil Nadu government cannot release the Rajiv Gandhi assassination case convicts. It was an unparalleled act in the annals of crimes committed in this country, the Centre told the Tamil Nadu government.

Watch: TN has won: State lawyer in Perarivalan case

The SC accepted on record the communication from the Centre rejecting a proposal made by the Tamil Nadu government to release seven convicts under life imprisonment in the Rajiv Gandhi assassination case. “The brutal act brought the Indian democratic process to a grinding halt inasmuch as the general elections to the Lok Sabha and Assemblies in some states had to be postponed,” the Centre said.

It noted that 16 innocent lives were lost and many sustained grievous injuries in the “gruesome, inhuman, uncivilised, and merciless bomb blast.” The assassination showed “exceptional depravity,” including the use of a woman as a human bomb, the letter said. A three-judge Bench of Justices Ranjan Gogoi, Navin Sinha, and KM Joseph received the April 2018 letter.

The Centre explained to Tamil Nadu that setting the convicts free now would be a “dangerous precedent and lead to international ramifications by other such criminals in future.”

Centre’s delayed response

The state government wrote to the Centre on March 2, 2016, proposing the grant of remission for the convicts. It wanted the Centre to concur. The Centre’s response came after nearly two years, in April 2018, after a SC order asked it to do so.

In the two-page response, the Centre said it considered Tamil Nadu’s proposal in consultation with the CBI. The assassination was “brutal” and “in pursuance of a diabolical plot carefully considered and executed by a highly organised foreign terrorist organisation.”

It conveyed that the CBI, which investigated the case, was also opposed to releasing them in the interest of justice. The case has already been reviewed in the highest forums of the judiciary and executive, all agreeing to the guilt of the convicts, said the Centre.

Also read: Perarivalan’s plea: What the SC said on personal liberty and federalism

Tamil Nadu first proposed the remission for the convicts in a letter dated February 19, 2014. This spurred the Centre to move SC. It triggered the question whether a state could unilaterally remit the life sentence in a case investigated by a central agency like the CBI, as in this case.

The Bench, however, left the factual question of whether the seven convicts deserved remission or not to a three-judge Bench. The three-judge Bench of Justices Ranjan Gogoi, AM Sapre, and Navin Sinha decided that since the state’s letter of 2014 was still pending with the Centre, the latter should now take a decision.

The Constitution Bench, speaking through Justice FMI Kalifulla, interpreted Section 435 of the CrPC, which dealt with remissions for life convicts.

The majority judgment of the Constitution Bench said the word “consultation” in the provision actually meant “concurrence.” The Bench ruled that a consultation with the Centre in heinous cases should not be an empty formality, as national interest was at stake.

In a 200-page majority judgment, Justice Kalifulla repeatedly made scathing references about the convicts but stopped short of deciding the merits of Tamil Nadu’s remission request.

Centre’s changed position

On February 20, 2014, the court stayed Tamil Nadu’s move to release three convicts — Murugan, Santhan and Perarivalan — whose death sentences it commuted to life term on February 18. Later, it stayed the release of convicts Nalini, Robert Payas, Jayakumar, and Ravichandran in the case, saying there were procedural lapses on the part of the state government.

Then President Ram Nath Kovind, too, rejected the Tamil Nadu government’s request to release the seven convicts. The decision was taken on the advice of the Union Home Ministry; the President informed the state that the Centre “doesn’t concur with its view.”

Under Section 435 of the CrPC, the state government must consult the Centre before releasing prisoners who were tried by the CBI or under a central legislation. “You take a decision. That itself will decide the matter,” Justice Gogoi orally addressed Additional Solicitor General Pinky Anand.

Also read: Released by SC, Rajiv murder convict says ‘there is no need for capital punishment’

The government informed the Supreme Court in August 2018 that it was against the release of the Rajiv Gandhi assassination convicts, saying that such a decision in a case involving the “gruesome” killing of a former prime minister would set a wrong precedent.

The Ministry of Home Affairs conveyed the government’s view through an affidavit to a Bench led by Justice Ranjan Gogoi. The government said at least 16 innocent people had also died in the blast that killed Rajiv Gandhi. It was a crime of “extreme depravity” committed by an “international terrorist group” in pursuance of a “diabolical” plot…, and any release of the convicts would have “international ramifications,” it said.

The ministry said the prosecuting agency, CBI, was also opposed to releasing them. The convictions had been upheld by the top court, and both the executive authorities and the judiciary had been unanimous about their guilt, the government said.

Four of the convicts were awarded the death sentence, but that was later commuted to life imprisonment. Three others were originally sentenced to life term. The court eventually ruled that the power was technically with the Centre.

The SC, having concurred with the Centre on the clutch of issues, has now changed that position.

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