Rajiv Killers: SC Reduces Political Leeway In Freeing Convicted Lifers, But This Isn't The End Of The Argument

If Yakub Memon can hang for his indirect role in the Mumbai blasts, Rajiv Gandhi’s killers deserve no special treatment merely on account of the greater political support they received.

The Supreme Court has done well to curtail the powers of state governments in releasing criminals convicted of unconscionable crimes and who had been given specific jail terms beyond 14 years. It has held that states cannot on their own remit sentences and the centre must concur before such convicts are released. It also held that a life term ordinarily means the full life of the convict.

The judgment will, however, do little to still the debate over the death penalty, an issue that comes back to a boil just when someone is sought to be executed for terrible crimes, including terrorism. In fact, it was the Tamil Nadu government’s unseemly hurry in trying to release the three men convicted for the assassination of Rajiv Gandhi in 1991 that prompted the apex court to look at the issue. Their sentences were earlier commuted to life by the court.

Rajiv Gandhi with Indira and Sanjay Gandhi

In February 2014, when the Supreme Court commuted the death sentences of Perarivalan, Santhan and Murugan to life, the Tamil Nadu government immediately announced that it would release the three, even before the ink of the court judgment could have dried.  The convicts had not even appealed for clemency but the state decided to free them. This political decision, prompted by the AIADMK’s attempt at one-upmanship with arch rival DMK, led to a public outcry and the Supreme Court constituted a five-judge constitutional bench to examine whether state governments could, among other things, do this on their own.

There is, in fact, an unstated linkage between Wednesday’s judgment (which dealt with the arbitrary release of criminals, including terrorists, sentenced to life), and the Yakub Memon hanging. In July, Memon was hanged after the Supreme Court rejected his appeals. The court had bent over backwards to hear his repeated appeals, including by keeping the court open well past midnight, possibly to dispel any perceptions of bias against a Muslim convict.

The linkage comes from the fact that the last three major executions of convicted terrorists all involved Muslims – Ajmal Kasab for his role in the 26/11 Mumbai terror attacks, Afzal Guru (for the 2001 Parliament attack), and Yakub Memon (for his role in the 1993 Mumbai blasts). Other convicted terrorists who were not hanged – for some reason or the other – included Balwant Singh Rajoana (convicted for the assassination of former Punjab CM Beant Singh), Devinder Pal Singh Bhullar (convicted in the 1993 Delhi blast case) and the three sent to death row in the Rajiv Gandhi assassination case (Perarivalan, Santhan and Murugan).

The unacknowledged factor that ensured the hanging of one set of terrorists and the sparing of the rest was that the Muslims involved got no political backing, while the rest did – Rajoana from Sikh politicians and Rajiv’s killers from all the major Tamil Nadu regional parties. The immediate effect of the latest Supreme Court judgment will be to ensure that Perarivalan, Murugan and Santhan spend the rest of their years in jail, unless another bench set up to hear the Tamil Nadu government’s appeal overturns the verdict. That development could once again hang on politics. If J Jayalalithaa convinces the Modi government to relent, they could still be set free as it would mean complying with the letter, if not the spirit, of the judgment. Short of allies to pass crucial legislation, the Modi government could well do a deal with Jaya.

Still, the Supreme Court judgment is important, since it finally accepts the argument that it is not only convicted criminals who have human rights. The majority judgment, written by Justice KFI Kalifulla, made this very clear: “We find no scope to apply the concept of ray of hope to come to the rescue of such hardened, heartless offenders, which if considered in their favour will only result in misplaced sympathy and again will not be in the interest of society. Therefore, we reject the said argument outright.”

Rajiv Gandhi Memorial at the spot of assassination .(Photo: Planemad)

The court went further and said that “lawlessness is the order of the day”, and state governments could not have the power to release criminals in cases investigated by central agencies and where the offences invite a death penalty or relate to the executive power of the union.

The only pity is that the judgment was given 3-2, with Chief Justice HL Dattu, Justice FMI Kalifulla and Justice SC Ghose on the majority side, and Justices AM Sapru and UU Lalit on the minority. The close verdict means bleeding heart “liberals” will seek a review and claim moral victory as at least two judges were on their side.

The moral argument though is more on the side of the majority decision, as both the death penalty and life terms are awarded only for heinous crimes, and allowing states to decide clemency cases on a political bases actually tends to subvert justice. The simple logic is this: if Yakub Memon can hang for his indirect role in the Mumbai blasts, Perarivalan and his two co-convicts deserve no special treatment merely on account of the greater political support they received for clemency, and even release.

To be sure, the court was probably wrong in principle to even commute the death sentences in February 2014 on the plea that the 11-year delay in deciding on their clemency pleas led to trauma for their families. While this may be true, it ignores the mental anguish of the relatives of the victims – not just Rajiv Gandhi, but 17 others who were killed in the Sriperumbudur blast. Is their trauma, of not finding closure even after 24 years, not relevant?

Clearly, the Supreme Court has to rethink clemency issues from the point of view of the victims. In this context, the verdict in the Rajiv killers’ case is a step in the right direction.