The Supreme Court’s decision to release six persons, including four Sri Lankan nationals, serving life sentences in the Rajiv Gandhi assassination case on the advice of the Tamil Nadu government raises disturbing questions about due process. These persons — Nalini, Ravichandran, Santhan, Robert Payas, Jayakumar and Murugan — had been convicted after an investigation by a CBI SIT (Special Investigation Team) and a judicial process that began in a TADA court and concluded at the Supreme Court. The former prime minister and 15 others were killed when an LTTE suicide bomber targeted a political rally in Sriperumbudur, near Chennai, on May 21, 1991. A TADA court in January 1998 sentenced 26 of the 41 accused in the case to death; a year later, the SC freed 19 of them, upheld capital punishment to four persons and commuted death sentence of three others to life imprisonment. In 2000, the Tamil Nadu governor commuted the death sentence of Nalini to life on the state government’s recommendation; in 2014, the SC commuted the sentence of the other three on death row to life on the ground that there was inordinate delay on the part of the Centre in responding to their mercy pleas. In May 2022, the SC allowed remission of A G Perarivalan’s life sentence.
Indeed, the two-judge SC bench has cited the Perarivalan case as a precedent to free the six convicts last week. The Court, regrettably, preferred a procedural approach and allowed itself to be guided by the Tamil Nadu government’s push for remissions in a case that pertained to an act of terrorism by an overseas organisation. The Tamil Nadu Cabinet resolution of 2018 reflected the consensus among major parties in favour of remissions. However, the Court ought to have insulated the law and due process from being overly influenced by the political executive. Its approach is stark when the plight of hundreds of persons incarcerated for extended periods because of state overreach in curtailing individual liberties is considered. In the Rajiv assassination case, Tamil subnationalism seems to have carried the day for the convicts — it is evident in the silence of the political class, including those who ride on hyper-nationalism. This arbitrariness is even more fraught given how politics clouds due process. Consider how the Ministry of Home Affairs recently cleared the way for life convicts in the Bilkis Bano case, involving gang rape and murder during the 2002 Gujarat riots, to walk free ostensibly on the recommendation of the Gujarat state administration. Ironically, in the Bilkis Bano case, the Supreme Court had taken exception to the investigation by state agencies to ensure that justice was served to the victims of gruesome communal violence.
It is baffling that the courts have allowed individual liberties to be determined by
local political sentiments rather than by the letter and spirit of law. If the law or the process needs reforms or codification to avoid the charge of exceptionalism, so be it. But abdicating its role to the political executive when it comes to crime and punishment reflects poorly on the judiciary.