Reprieve from death

The delay of over 11 years by the President to decide the mercy pleas of Rajiv Gandhi's killers dominates the debate on the issue.

WHY was there a delay of more than 11 years before the President of India decided on August 11 to reject the clemency petitions of Murugan, Santhan and Perarivalan, who had been sentenced to death in the Rajiv Gandhi assassination case? The question came to the fore after it became known that the President had rejected their petitions. Officials of the Central Prison, Vellore, subsequently decided to hang them on September 9, but on August 30 the Madras High Court stayed their execution.

The Supreme Court reconfirmed the death sentences awarded to Nalini, Murugan, Santhan and Perarivalan in October 1999. On April 24, 2000, M. Fathima Beevi, Governor of Tamil Nadu then, commuted the death sentence awarded to Nalini, wife of Murugan, on the grounds that she was a woman and had a daughter; but she rejected the clemency petitions of the other three. The three sent separate clemency petitions to the President on April 26, pleading that they had undergone solitary imprisonment for eight years, which alone could be a mitigating factor for commuting their death sentences. The President's decision came after 11 years and four months.

Following this, Vaiko, leader of the Marumalarchi Dravida Munnetra Kazhagam (MDMK) and N. Chandrasekaran, advocate, filed petitions on behalf of the trio in the Madras High Court. Senior Advocates Ram Jethmalani, R. Vaigai and Colin Gonsalves, who appeared for Murugan, Santhan and Perarivalan respectively on August 30 before a Division Bench comprising Justices C. Nagappan and M. Sathyanarayanan, argued that the 11-year delay made the death penalty illegal and unconstitutional. The sentence of death after the three had spent 20 years in jail was unjust and inhuman, they said.

Unless the delay is properly explained or justified, Jethmalani argued, it makes the death penalty immoral, illegal and, according to me, unconstitutional. He told the judges: You must start with the assumption that more than two years' delay is, prima facie, wrong. Jethmalani quoted from various Supreme Court and High Court judgments, including the apex court's ruling in the Chinnappa Reddy case, to argue that the 11-year delay could be the sole ground for commuting the death sentence.

Vaigai and Gonslaves argued that the delay was unconscionable. By no yardstick could a government sit on a mercy petition for so many years. The delay made the execution of death sentence unconstitutional, Gonslaves argued. He said Article 21 of the Constitution made it mandatory that no person should be deprived of his life or personal liberty except according to the procedure established by law. Taking 11 years to dispose of the mercy petitions was not a procedure established by law, he said.

The arguments were heard in a courtroom packed with a couple of hundred advocates. The judges said in their brief order that the main contention raised in all the writ petitions was the delay in the disposal of the mercy petitions. Since the matter involves consideration of question of law, the petitions are admitted and there shall be an order of interim injunction. Counter by eight weeks. Additional Solicitor-General M. Ravindran and Advocate-General A. Navaneethakrishnan took notice for the Union government and the State government.

Assembly resolution

As news of the stay spread, the several hundred advocates gathered on the High Court premises rejoiced. Arputhammal, mother of Perarivalan, thanked Jethmalani with clasped hands as a beaming Vaiko stood by. There was more rejoicing when news came in on the same day that the Tamil Nadu Assembly had passed unanimously a resolution urging President Pratibha Patil to reconsider the clemency petitions.

The President should take into account the sentiments of the people of Tamil Nadu and the opinions of the political parties, the resolution said. The Congress members did not oppose the resolution. The Dravida Munnetra Kazhagam (DMK) members were not present in the House.

The resolution, piloted by Chief Minister J. Jayalalithaa, marked a significant change in the ruling All-India Anna Dravida Munnetra Kazhagam's (AIADMK) stand. Only the previous day had she told the Assembly that as Chief Minister she had no powers to stop the executions after the President had rejected the mercy petitions. This had been made clear in a Union Home Ministry Communication dated March 5, 1991, which said: In case of death sentences where a petition for grant of pardon, etc., has earlier been rejected by the President of India in exercise of his powers under Article 72 of the Constitution of India, it would not be open for the Government of a State to seek to exercise similar powers under Article 161 in respect of the same case. However, if there is a change of circumstances or if any new material is available, the condemned person himself or anyone on his behalf may make a fresh application to the President for reconsideration of the earlier order. Once the President has rejected a mercy petition, all future applications in this behalf should be addressed to and would be dealt with by the President of India.

Jayalalithaa also accused the DMK of adopting double standards and enacting a deceitful drama. Several political parties, Arputhammal and DMK president M. Karunanidhi had appealed to her to stop the executions. Jayalalithaa recalled that it was under Karunanidhi's chief ministership in 2000 that the State Cabinet recommended rejection of the mercy petitions of Murugan, Santhan and Perarivalan. (The Cabinet took the decision on April 19, 2000, and the Governor, accepting its advice, passed the order on April 24.) If, after recommending the rejection of the mercy petitions of the three to the Governor, Mr. Karunanidhi issues a statement that their lives should be saved, people of Tamil Nadu should ponder whether it is not tantamount to adopting double standards and performing a drama? Jayalalithaa said.

Karunanidhi, however, turned the tables on Jayalalithaa. He said that on April 27, 2000, an AIADMK member opposed in the Assembly even the commutation of the death sentence awarded to Nalini. Jayalalithaa, too, had objected to the commutation. In a statement published in the AIADMK party organ Namadhu MGR (Our MGR) on October 23, 2008, she had attacked the delay in executing the death sentences awarded to the trio.

Karunanidhi said: The three persons have spent more than 20 years in jail, which is virtually tantamount to death sentences. So the DMK wants the [death] sentence to be reconsidered. Since Murugan, Santhan and Perarivalan have spent more than 20 years in prison, it should be treated as if they had fully undergone the punishment awarded to them and they should be freed. The DMK appeals to the Centre to take steps in this direction.

The assassination case

On May 21, 1991, former Prime Minister Rajiv Gandhi was assassinated at Sriperumbudur near Chennai by Dhanu, a belt-bomb assassin belonging to the Liberation Tigers of Tamil Eelam (LTTE). After a meticulous investigation, the Special Investigation Team (SIT) of the Central Bureau of Investigation (CBI) headed by D.R. Karthikeyan charge-sheeted 41 people in the case. The SIT said the LTTE was behind the assassination. Of the 41 accused, three were absconding and could not be tried. They were the LTTE chief V. Prabakaran, its intelligence wing chief Pottu Amman, and deputy chief of the LTTE women's intelligence wing, Akila. Twelve among the 41 died, and so charges against them abated. The remaining 26 stood trial in the designated court at Poonamallee near Chennai. In his judgemnt delivered on January 28, 1998, the designated judge, V. Navaneetham, pronounced all 26 guilty under Section 102-B (murder) read with Section 302 (murder) of the Indian Penal Code and provisions of the Terrorist and Disruptive Activities (Prevention) Act, or TADA.

The charge against Prabakaran was that he ordered the assassination. Pottu Amman conspired with Prabakaran to carry it out. The charge against Akila was that she, in tandem with them, planned the assassination and arranged for its execution. Dhanu, an LTTE cadre, was to carry out the assassination along with Subha. Sivarajan, LTTE intelligence wing member, led the nine-member assissination squad, which reached Kodiakkarai in Tamil Nadu from the Jaffna peninsula on May 1. Sivarajan and Subha committed suicide at Konankunte, near Bangalore, on August 19, 1991, when cornered by the SIT.

The charge sheet said Nalini, an Indian national and wife of Murugan, accompanied Sivarajan, Dhanu, Subha and Haribabu to the assassination site. Murugan, a Sri Lankan Tamil and LTTE intelligence wing cadre, acted as a conduit between Sivarajan and Nalini's family. According to the charge sheet, Murugan knew that Rajiv Gandhi was the target; Santhan, also a member of the LTTE intelligence arm, was a member of the squad; and Perarivalan, an Indian citizen, helped Sivarajan and Murugan in planning and executing the conspiracy. He bought two battery cells on Sivarajan's instructions and gave them to him. They were used by Dhanu in her belt-bomb. Perarivalan also bought a battery to operate an illegal wireless set, which was installed in Vijayan's (another accused in the case) house to send messages to Pottu Amman. Perarivalan bought the Kodak film used by Haribabu, photographer, to film the assassination. Haribabu died in the blast.

After the designated court awarded death sentences to all the 26 accused, they appealed in the Supreme Court. On May 11, 1999, Justices K.T. Thomas, D.P. Wadhwa and Syed Shah Mohammed Quadri confirmed the death sentences awarded to Nalini, Murugan, Santhan and Perarivalan but altered the death sentences awarded to Robert Payas, Jayakumar and Ravichandran to life imprisonment.

Justice Thomas disagreed with Justices Wadhwa and Quadri on confirming the death sentence awarded to Nalini. In his dissenting judgment, Justice Thomas said, She became an obedient participant without doing dominant role. She was persistently brainwashed by A-3 [Murugan] who became her husband and then the father of her child.... She realised only at Sriperumbudur that Dhanu was going to kill Rajiv Gandhi. But she would not have dared to retreat from the scene because she was tucked into the tentacles of the conspiracy.... She knew how Sivarajan and Santhan had liquidated those who did not stand by them... ( Frontline, November 5, 1999). Justice Thomas added that it could not be overlooked that she was the mother of a little girl who was born in captivity. Since the death sentence had been confirmed on the father Murugan and the child had to be saved from imposed orphanhood, the judge said, the sentence passed on her is altered to one of imprisonment for life.

Of the 19 other accused, the judges absolved 18 of taking part in the conspiracy. Although the judges confirmed the sentences awarded to them by the lower court under the Arms Act, the Explosive Substances Act, the Passport Act, and so on, they were freed because they had already served out their terms. S. Shanmugavadivelu, who was charged only under TADA, was acquitted.

Nalini, Murugan, Santhan and Perarivalan filed petitions in the Supreme Court, seeking a review of the death sentences awarded to them. On October 8, 1999, Justices Thomas, Wadhwa and Quadri reconfirmed the death sentences. Justice Thomas, who gave the dissenting judgment with regard to Nalini, said her review petition should be allowed and her sentence should be altered to imprisonment for life.

After the Supreme Court ruling in October 1999, Fathima Beevi accepted the recommendation of the Karunanidhi Cabinet in April 2000 to commute the death sentence awarded to Nalini to imprisonment for life. Congress president Sonia Gandhi met President K.R. Narayanan and conveyed her family's view that Nalini's life should be spared. It is my personal feeling, keeping in mind a child's need for a mother, Sonia Gandhi said ( Frontline, May 26, 2000). Fathima Beevi rejected the petitions of Murugan, Santhan and Perarivalan. They sent clemency petitions to the President on April 26, 2000. President Pratibha Patil's rejection of the petitions led to protests across Tamil Nadu.