Release of Rajiv killers by SC needs review

KP Singh

Former DGP, Haryana

EXERCISING extraordinary powers under Article 142 of the Constitution, the Supreme Court last month directed the release of former Prime Minister Rajiv Gandhi’s six assassins, including four members of the LTTE, a Sri Lankan terrorist organisation. The Central Government has filed a review petition against the order, stating that granting remission to terrorists of foreign origin, duly convicted in accordance with the law of the land for the gruesome offence of killing a former PM, is a matter having international ramifications and falls squarely within the sovereign powers of the Union of India. It is pleaded that the court has erred in enlarging foreign terrorists without hearing the Centre. The Congress is contemplating filing a separate review petition.

The SC confirmed death penalty to four assassins and life imprisonment to three other assassins of Rajiv Gandhi and 14 others in 1999. In the Shatrughan Chauhan case (2014), the SC held that delay in the execution of capital punishment amounted to a violation of the right to life and commuted death sentence of all such convicts to life imprisonment. Consequently, the death sentence of the four convicts awaiting the gallows in the Rajiv case was also commuted to life imprisonment.

Immediately after that, the then CM of Tamil Nadu, J Jayalalithaa, exercising her legal powers under Sections 432 and 433 of the Criminal Procedure Code (CrPC), 1973, lost no time in ordering the release of all the lifers serving sentence in the Rajiv assassination case. However, since the case was investigated by the CBI, the orders could not be implemented for want of ‘consultation’ with the Central Government, as was mandatory under provisions of Section 435 of the CrPC. The Central Government did not approve the action of the Tamil Nadu Government and got the operation of the orders stayed from the SC.

Subsequently, the Union of India filed a petition in the apex court, praying therein to clarify the meaning of the term ‘consultation’, as used in Section 435 of the CrPC. A Constitutional Bench of the SC ruled that the term ‘consultation’ meant primacy of opinion of the Central Government. Accordingly, the Centre rejected the release order passed by the state government.

The state government did not relent and used another route to secure the release of the assassins. On September 9, 2018, the Council of Ministers recommended to the Governor to exercise his clemency powers under Article 161 of the Constitution and commute the life sentence of the assassins. The Governor did not take any action on the recommendations and kept them pending for over two years.

The state government then filed a petition in the Madras High Court, seeking directions for the Governor to act upon its advice. The Madras High Court rejected the petition and held that clemency powers under Article 161 were discretionary and the Governor could not be directed by the state government to exercise the same. Later, the Governor referred the matter to the President of India for his advice.

Meanwhile, one of the assassins, AG Perarivalan, approached the SC, seeking directions for the Governor to release him as per the recommendations of the state government. On May 18, 2022, instead of issuing any direction to the Governor, the SC exercised its powers under Article 142 to do ‘complete justice’ and set him at liberty after taking into account his prolonged incarceration, satisfactory conduct both in jail and on parole, chronic ailments, educational qualifications acquired by him during incarceration and pendency of his petition under Article 161 for two and a half years.

On another petition filed by the remaining assassins, the SC directed their release as well on the principle of parity.

The wheels of justice in the Rajiv killers’ case have turned full circle. The dreaded and remorseless assassins have garnered the benevolence and magnanimity of the law.

The anguished victims of crime and their families are in a state of helplessness. The State is aggrieved as its ‘sovereignty’ is alleged to have been compromised. The ordinary man, who is the conscience-keeper of all institutions, is concerned whether all similarly circumstanced convicts would be allowed to walk free from the jails.

In the Delhi Electric Supply Undertaking case (2000), the SC observed that wide powers under Article 142 were given to do complete justice between the parties. Article 142 is curative in nature; the powers under it are meant to ‘supplement’ and not to ‘supplant’ the substantive law.

In the case of the Supreme Court Bar Association vs UOI (1998), the apex court states that while exercising powers under Article 142, the role of the SC is that of a problem solver in a nebulous case. A Constitutional Bench in the Secretary, State of Kerala vs Umadevi (2006) case emphasises that ‘complete justice’ under Article 142 means justice according to law and not sympathy. The SC in the Chanderkant Patil (1998) case has very rightly cautioned that power under Article 142 should be used “only sparingly” and not “frequently”.

Individualisation of justice in the case of Rajiv’s killers has resulted in conflicting opinions, leading to confusion and uncertainty in law. Doing justice to all parties is the mandate under Article 142. Therefore, questions are bound to be asked about the Centre and the victims of the crime not being heard by the SC before releasing the killers. Legal experts would certainly search for the nebulous areas which necessitated the SC to exercise powers under Article 142 in this case.

Another issue which deserves attention is whether, in matters of clemency, the Governor should be allowed to become a ‘shorthand’ expression of the state government, especially when the political executives appear to be motivated by socio-political considerations.

Lord Hewart, the then Chief Justice of England, in Rex vs Sussex said, “Justice must not only be done, but also be seen to be done.” The majesty of law lies in the universal application of uniform standards of justice. The mist around the release of Rajiv’s assassins needs to be cleared.

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