TN governor right in referring case of Rajiv murder convicts to President

Tamil Nadu governor Banwarilal Purohit has taken the right stand in not accepting the recommendation of the state government to release the seven convicts in the Rajiv Gandhi assassination case, and referring the matter to the President.

The governor has not taken the easy option of pandering to chauvinistic elements and has refused to play to the gallery on a matter of national importance with ramifications on the country’s security. The governor is clearly governed by the Supreme Court ruling that the state government has no authority to grant remission to the convicts since they were convicted under central law, following investigations by central agencies.

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The governor is also conscious of the fact that the Supreme Court has already rejected the plea for their release taking note of the Union government’s objections.

On December 2, 2015, a five-judge Constitution Bench led by then Chief Justice of India H L 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 Supreme Court has also 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, said state 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”.

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 which have been investigated by central agencies such as the CBI and NIA and where offences entail death penalty or conviction for an offence relating to the executive power of the Union.

Also read: SC unhappy with pardon plea of Rajiv murder convict pending for 2 years

The bench, led by Chief Justice H L 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 F M I Kalifulla, the author of the verdict, and Justice P C 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 if 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 is no bar on a high court and the top court to sentence a convict to 20 or 30 years in jail without benefit of remission.

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 Supreme Court in August 2018 that the Tamil Nadu government cannot release the case convicts. It was an unparalleled act in the annals of crimes committed in this country, the Centre told the Tamil Nadu government.

The Supreme Court accepted on record the communication from the central government rejecting a proposal made by the Tamil Nadu government to release the seven convicts.

“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.

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It noted that 16 innocent lives were lost and many sustained grievous injuries in the “gruesome, inhuman, uncivilised and merciless bomb blast.”

It was a crime of “extreme depravity” committed by an “international terrorist group” in pursuant of a “diabolical” plot which involved a “woman”, and any release of the convicts would have “international ramifications”, the Centre’s letter said.

The ministry said the prosecuting agency, the 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 Union government said.

A three-judge Bench of justices Ranjan Gogoi, Navin Sinha and K M 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.”

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. After nearly two years, the Centre’s response came in April 2018 after a Supreme Court 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 was also opposed to releasing them in the interest of justice.

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

The five-judge Constitution Bench led by then Chief Justice of India H L Dattu, in its  December 2, 2015, verdict, left the factual question of whether the seven convicts deserve remission or not to a three-judge Bench. The three-judge bench of justices Ranjan Gogoi, A M Sapre and Navin Sinha decided that since the state’s letter of 2014 was still pending with the Centre, it should take a decision.

“You take a decision. That itself will decide the matter,” Justice Gogoi orally addressed additional solicitor general Pinky Anand.

The Constitution Bench, speaking through Justice F M I Kalifulla, had interpreted Section 435 of the Criminal Procedure Code, 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 consultation with the Centre in heinous cases should not be an empty formality as national interest was at stake.

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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.

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

The 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 Union Home Ministry; the President informed the state that the Centre “doesn’t concur with its view”.

Under Section 435 of the Criminal Procedure Code, the state government has to consult the Centre before releasing prisoners tried by the CBI or under a central legislation.

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 court had asked the government to place its stand before it two years ago. In its response, the government said at least 16 innocent people had also died in the blast that killed Rajiv Gandhi. The court eventually ruled that the power was technically with the Centre.