Rajiv Gandhi assassination case: Ball is in Politicians’ Court

On Monday, Tamil Nadu government has informed the Madras High Court that it would send a reminder  to the Governor’s  office about the state’s  recommendation on release of seven life convicts in the Rajiv Gandhi assassination case, including Nalini Sriharan. Let’s get real with the facts and constitutional position.

By the orders of May 9 (2019), all of 28 years since the assassination of former Prime Minister Rajiv Gandhi on May 21, 1991 in the temple town of Sriperambudur, the Supreme Court, tossed the fate of the seven convicts, back to the lap of the Governor of Tamil Nadu, Mr. Banwarilal Purohit.  Before whom, the petition dated 19th Feb,2014,is ‘pending’, in the light of Edappadi Cabinet recommendation of September 9, 2018, ‘to release the seven convicts’. Time for politicians to wade into the emotional issue of undeniable sensitivity.

The Top Court dismissed the writ petition, filed in 2014, by the families of the victims of the bomb blast, opposing the grant of remission. This, on the solitary ground that the ‘issues’ raised were already decided in the orders of 2nd Dec,2015, in the case of Sriharan.

The legal, constitutional and political issues are all tangled up in a web. Democracy is premised on the balance of power between the three pillars - viz. Legislature, Executive and the Judiciary.  In this case, the lives of the seven convicts have been bandied around, without any one of them, catching the bull by the horns.  The seven convicts, in incarceration, for nearly 30 years now, their families and even the families of the victims, who have a huge stake in the issue, are on perennial tenterhooks.

To recapitulate, it was way back on 28 Jan,1998, all 26 accused, were sentenced to death by the TADA Court, at Poonamallee. On appeal, in a rather speedy disposal, on 11th May, 1999, Supreme Court upheld the death sentence of four, commuted it to life for three, and acquitted the 19 others. Murugan, Santhan, Perarivalan and Nalini sought review of their death sentences to life, which was declined on 27th Oct,1999. Forget not, that the DMK Government led by Karunanidhi recommended commutation of death sentence on Nalini, on 19th April,2000, which the then Governor accepted  on 21st April,2000.

Independent of this, the TN Government had forwarded clemency petitions of Santhan, Murugan and Perarivalan to the President on 28 th April, 2000, and on 12th Aug, 2011, the President rejected it.

This led to date of Execution being fixed for September 9, 2011. Thus far, it appeared that process between the branches of government, was speedy. We also had the TN Assembly joining in with a unanimous resolution of 30th Aug, 2011, seeking commutation of the death sentences to the three.

The Madras High Court intervened to stay the executions and these petitions were later transferred to the Apex Court, where it belonged.

It was these petitions that were considered by the Supreme Court, and by orders of February 8, 2014, the death sentence against the three convicts, were commuted to life, ‘on the ground of delay in disposal of the mercy pleas as having a direct impact on the human rights of the convicts’. Picking up on this theme, the AIADMK Government of J Jayalalitha “decided to immediately release Satnthan, Murugan, Perarivalan, Nalini, Robert Payas, Jayakumar and Ravichandran in exercise of the power of the State and sent the decision to Centre”, on 19th February, 2014.

It was this gesture that was challenged by the Centre. On the 1st of April, 2014, the Supreme Court declined to review its decision to commute the death sentences of the three convicts already made. And on 25th April, 2014, referred the legal issues to a Constitution Bench. On 29th July, 2015, the Supreme Court dismissed the curative petition - one of last resort - from the Centre, seeking review of the commutation granted to three convicts. Then it reserved orders on the constitutional reference.  
 
It was this Constitution Bench decision of 2nd December, 2015, which led to dismissal orders of 9th May,2019 . The politicians have naturally got into their acts, all over again, asking the EPS Government to ensure that the Governor accept the recommendation of the TN Cabinet of 9th Sept,2018.

Where is the Governor perched in the constitutional scheme of things under Art.161? Is he obliged to accept the Cabinet’s ‘aid and advice’? Are all avenues closed for the seven convicts? Do they still have a window of opportunity?  Where is the ball lying--in legal, constitutional or political plane, as a matter of reality now?

For those in the know of things, the decision of the Supreme Court dated 2nd Dec, 2015 knows no exception. The TN State has no independent right to order remission. They need to ‘consult’ the Centre and for sure, require their ‘concurrence’; this requirement is unexceptionable, in this matter.
 
Where does it take us?  Subsequent to the orders of 2nd Dec,2015, of Supreme Court, by its directions of 24th Jan, 2018 - the Court had given three months time to the Centre, to decide on the 19th Feb, 2014 proposal of the TN Government to ‘release the seven convicts’. It is a matter of record that pursuant to the said directions, the Union Government sought details from the TN Government, on 11th June,2018, to ‘facilitate further the request made’. Upon receiving the response, President Ram Nath Govind rejected the request of the TN Government on the ‘ground that the Centre doesn’t concur with its view’, on 15th Jun, 2018 itself.  In effect, it would appear that in line with the constitutional requirement of 2nd Dec,2015 order of Supreme Court, ‘consultation’ was made with Centre by TN Government, and the Centre has declined to ‘concur’.

What then survives to the 9th Sept, 2018 Cabinet recommendation of TN Government made to the Governor to ‘release the seven convicts’? Honestly, on the legal and constitutional plane, very little. But on the political plane, a lot. Or even everything. Remember, by orders of 18th Nov,2018, Nedunchezhian, Ravindran @ Madhu and Muniappa, who were serving life sentence for the infamous Dharmapuri Bus burning,  in the aftermath of the Jayalalitha Pleasant Stay Hotel adverse verdict, from Supreme Court, were released within hours, in exercise of the ‘remission powers of the State’. TN State had the exclusive jurisdiction and ‘consultation’ or ‘concurrence’ with the Centre was not mandated.

So, it could happen, even if the decision and compliance at break-neck speed took one’s breath away, rendering the decision wobbly.     
                                    
Legislature has spoken with its unanimous resolution/s. Judiciary has pronounced its verdicts, more than once. The constitutional contours are well marked. Politicians ought to stop talking and instead wait and act. The ball is truly in politicians’ Court. Both at TN and Central level.

In the face of the decision of the Central Government, dated 15th Jun,2018 declining to ‘concur’ with the recommendation of TN Government, unless the Central Government chooses to ‘reconsider’ its earlier refusal to ‘concur’, the decision of the Governor may be no surprise. The conscience call would therefore be the politicians’ alone. The politicians in the State may be united in their stand. But Modi 2.0 may have a huge say in the freedom of the seven convicts and on the families of the victims of the bomb blast, both, live and real human rights issues of seminal importance. It’s Politics, my friend!

(Author is practising advocate in the Madras High Court)