Madras high court blunts the political decision of Melavalavu remissions

The interim orders of Nov 27, 2019, of Justices S. Vaidyanathan and N.Anand Venkatesh, in the Melavalavu dastardly killings case, has come not a day too soon. The learned judges have caught the bull by the horns, and ordered notice to the State Government and all 13 convicts, who have been granted remission of the life sentences they were visited with. In a rare, yet welcome order, the Madurai Bench has directed the 13 convicts not to visit Melavalavu village and imposed curbs on their freedom.

It has set the buzz in political and legal corridors.

Ordinarily, only notice may have been ordered. Stay of the order of remission, passed under Art.161 of the Constitution by the Governor of the State, was rightly declined. But, to place curbs on the freedom of the 13 convicts, sends shivers down the spine of the convicts, that the Judges were more than prima facie satisfied that the remission order was wobbly. And this despite the strong push back from the State, that already three convicts had been released on 11th Sept, 2008 and they were leading a quiet life for a decade now. The State and the 13 convicts may have a lot to worry with the underlying message from the 11-page order.

To recapitulate, the Melavalavu mayhem giving rise to the present case, had its genesis in mid-1996 when Melavalavu Village Panchayat, a ‘General Constituency’, was declared to be reserved for the Scheduled Castes. This change in category, strained the relations between the Scheduled Castes and Ambalakarar community in the village. During the Panchayat elections in the year 1996, there were protests from Ambalakara community that SC candidates should not contest the elections. Violence ensued, and some houses belonging to the members of the Scheduled Castes were burnt down.

Upon conciliation, election was conducted on 31st Dec, 2016. Murugesan, SC candidate, became President of Melavalavu Panchayat. To cut the story short, his election triggered a caste clash and massacre of the innocents on 30th June, 1997.

In a comparatively swift course of events, the accused murderers were apprehended and by orders dated 26th July, 2001, Principal Sessions Judge, Salem convicted several, including the present 13, now in a soup. Appeals made to the High Court failed when a Division Bench ruled on 19th April, 2006, "We confirm the conviction and sentence imposed on the appellants by the Trial Court under Section 302 read with Sec.34 IPC and Sec.148 IPC. Criminal Appeal Nos.803, 863 and 871 of 2001, filed by the convicted accused." And interestingly, the Bench did not fail to taunt the State, when it said, "Even in respect of the charge under Section 3 (1) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, we have concluded that there is enough material to hold against all the accused.

But, unfortunately, the State has not preferred appeal against the acquittal of the remaining accused." Till date, the tantalizing poser remains unanswered.

Of course, the convicts escalated their grievance to the Top Court. Justices V.S. Sirpurkar and Deepak Verma dismissed the appeals by orders of 22nd Oct, 2009. Quietus was given, not closure, after 12 years of the dastardly acts. The Apex court was quoted to say, “Considering the unprecedented nature of this prosecution, the chaos that it caused in the otherwise peaceful life of the village and the enormousness of the whole affair, the number of persons murdered, the number of witnesses collected and the enormousness of the investigation, we cannot blame the investigating agency and the prosecution for not being able to trace out the FIR book…. In our opinion, that circumstance, by itself, will not persuade us to throw the whole prosecution case. In fact, barring the aforementioned argument regarding the FIR, no arguments were led before us, assailing the evidence of the eyewitnesses, as also the injured witnesses and the other corroborating circumstances relied on by the courts below”. It was an easy verdict, considering the horrific nature of the crime and the overwhelming evidence marshalled, to prove the guilt. The Supreme Court did not omit to note that the convicts made an attempt to win over PW-1 - Krishnan, who turned hostile, after cross examination.

Ten years to the day, as it were, the interim orders have come from the High Court, stopping in its tracks, a sure-fire political decision in granting remission to the 13 convicts. Yes, it is undeniably political. It is meant to be so, in its inherent precept and practice. Read the Constituent Assembly Debates (28th Dec, 1948 and 17th Sept, 1949) on the role of Governors, in this regard.

They did not advert to the grounds for exercise of such power. They left it to the wisdom of our representatives. The framers did not mistrust the politicians. The legal and constitutional norms that need to be imbued in the decision of the State did not make it any less political than it is. Mind you, Remission unlike Pardon , does not ‘wash off the sins’.

The Governor of a State has immunity from being sued. Times without number, the Supreme Court has upheld it and recognised the ‘discretion’ vested in the office of the Governor, in say the appointment of a Chief Minister of the State. But it has been made clear that in the exercise of the Constitutional power under Art.161, the remit has a limit. The Governor has to go by the recommendation of the State Council of Ministers. And that is subject to judicial review.

Dear reader, Remission shall always be a political call. Remember on Nov, 19, 2018 three convicts serving life sentences, after the well known Krishnagiri Bus burning case, in rioting, in the wake of conviction of Amma Jayalalithaa, were released from Prison, at 12.25 pm upon a fax being received by the prison authorities at 11.30 p.m--stunning speed and alacrity shown. That too was a political decision.

Be it Art.72 under which the President has the power, which of course is wider in amplitude, also founded on the recommendation of the Union Cabinet, or Art.161, under which the Governor has issued the present remission order, they are political calls with a legal and constitutional flavour.

One is surprised that that whichever political party is at the helm takes a political call, unless the remission is discomforting politically, to the opposition, they do not make an issue of it. Rule of Law is least of their concerns. It is politics that drives such decisions and the responses are also political. That is why, the damning order from the Madurai Bench, deserves commendation. Watch this space.

(The writer is practising advocate in the Madras high court)