SUPREME INJUSTICE OF SUPREME COURT
COMPLETE INJUSTICE WE ALLEGE – BUT COMPLETE JUSTICE THE SUPREME COURT ASSERTS.
Legally the Supreme Court may be correct and
justified, but, politically and morally, the Supreme Court’s order is incorrect
and unjustified.
Some Legal Luminaries said: Article 142 of the
Constitution of India, which by its phraseology is a seemingly benign
procedural adjunct to the Supreme Court’s powers, has emerged as the most
potent devices employed by the court in judicial activism and judicial
innovation.
Hence
E-Touch alleges that the Supreme Court’s order to release Rajiv Gandhi
Assassination Convicts is bordering around Judicial Activism and that too in a
Rarest of Rare Court Case. So, the Supreme Court had done COMPLETE INJUSTICE TO
RAJIV GANDHI AND 14 OTHERS KILLED APART FROM 43 GRIEVOUSLY INJURED IN THE
SUICIDE BOMB EXPLOSION. Supreme Court’s Mercy to Assassins had resulted in Complete Injustice to 58 Victims.
The following two quotes will throw light on the
dangers behind constitutional interpretations by individual judges through
their personal perceptions and desires to show mercy in such a gruesome
assassination of the top popular leader by a group of militants operating from
Sri Lanka demanding a separate Eelam which, unfortunately, had support from
Tamilnadu Dravidian Parties.
The two quotes are as under:
H.M. Seervai: Paradoxically,
the greatest danger to the administration of justice and constitutional
interpretation arises from the genuine desire of Judges to do justice in each
individual case.
Adam Smith: Mercy to the
guilty is cruelty to the innocent.
Hence as per our assessment, we assert:
21st May 1991 - Most Horrific Day of Rajiv Gandhi assassination by a Lady Human
Bomb
&
11th November 2022 - Most Injustice Day of Supreme
Court Order to release 6 Convicts of Rajiv Gandhi’s Assassination.
What is Article 142?
Definition: Article 142 provides discretionary power to the Supreme
Court as it states that the Supreme Court in the exercise of its jurisdiction
may pass such decree or make such order as is necessary for doing complete justice in any
cause or matter pending before it.
The Supreme Court thus ordered immediate release of Rajiv Gandhi
assassination case convict AG Perarivalan, who has spent more than three
decades in jail and said: The Tamil Nadu Governor’s decision to refer to the
President the state cabinet’s recommendation for his release didn’t have any
constitutional backing.
The top court had in 2014 commuted the death penalty of Perarivalan and
two other convicts to life imprisonment on the ground of inordinate delay in
deciding their mercy petitions. The Tamil Nadu Cabinet had on September 9,
2018, recommended to the Governor for the premature release of all seven
convicts in the case. The Governor referred the state cabinet’s recommendation
to the President two-and-a-half-year after receiving the cabinet’s
recommendation.
What is the Supreme Court’s Ruling?
Tamil Nadu Council of Ministers’ advice in 2018 to
pardon Perarivalan was binding on the Governor under Article 161 (Governor’s
power of clemency) of the Constitution.
The Governor’s reluctance to take a call on the pardon
plea has compelled the court to employ its constitutional powers under Article
142 to do justice to Perarivalan.
The Supreme Court used Article 142 of the Constitution
that grants it extraordinary powers to do complete justice, to release
Perarivalan.
The court dismissed the Centre’s argument that the
President exclusively, and not the Governor, had the power to grant pardon in a
case under Section 302 (murder) of the Indian Penal Code, saying this
contention would render Article 161 a “dead-letter” and create an extraordinary
situation whereby pardons granted by Governors in murder cases for the past 70
years would be rendered invalid.
Now on the 11th November 2022, a bench comprising
Justice BR Gavai and BV Nagarathna had passed the order allowing the
premature release of the remaining 6 convicts in the Rajiv Gandhi assassination
case relying heavily on the release of Perarivalan.
Justices B.R. Gavai and B.V. Nagarthna said the
convicts, who had spent over 30 years in jail, were entitled to be released on
principles of parity with another released convict, A.G. Perarivalan, freed by
the top court on May 18 this year.
“We, therefore, find that the factors which weighed
with this court while directing the release of A.G. Perarivalan are equally
applicable to the present applicants. We direct that all the appellants are
deemed to have served their sentence in relation to the crime. The applicants
are thus directed to be released unless required in any other case,” the bench
said.
The Supreme Court on November 11, 2022 directed the premature release of the six and observed:
“No provision under the Constitution has been pointed
out to us nor any satisfactory response tendered as to the source of the
Governor’s power to refer a recommendation made by the State Cabinet to the
President of India.
In the instant case, the Governor ought not to have
sent the recommendation made by the State Cabinet to the President of India.
Such action is contrary to the constitutional scheme.”
The Supreme Court judgment, therefore, concluded that
the State of Tamil Nadu, and not the Union, had exclusive power to recommend
remission in the case.
What is Article 161 ?
Ordering them to be “set at liberty forthwith”,
Justices Gavai and Nagarathna also took into account the fact that each of the
six convicts had individually exhibited satisfactory conduct during their long
incarceration. They had earned postgraduate degrees and diplomas while serving
their sentence. Santhan had published poems and articles and won awards in
France and Germany. In Nalini’s case, the court said she was a woman and had
already spent more than 30 years in incarceration.
Tamil Nadu Govt invoked Article 161 of our
Constitution and, passed a resolution in Cabinet, to release all the 7 convicts
involved in Rajiv Gandhi's assassination.
And the Supreme Court invoked Article 142 of our
Constitution to release Perarivalan then and 6 convcits now.
7 convicts of Rajiv Gandhi’s assassination released are -A. G. Perarivalan, Nalini Sriharan, Robert Pais, Ravichandran, Suthenthira Raja @ Santhan, Shriharan @ Murugan and Jaikumar and out of these 7, four of them, including Nalini’s husband Sriharan happen to be Sri Lankan nationals. The names of 4 Sri Lankan nationals are: Murugan alias Sriharan, Santhan alias T. Suthenthiraraja, Robert Pious and Ravichandran. The other three - Perarivalan, Nalini, Jayakumar - The brother in law of Robert Pious are Indian Citizens. Nalini, who is the wife of an LTTE operative known as V Sriharan alias Murugan, another convict in the case who had been sentenced to death, later gave birth to a girl, Harithra Murugan in prison.
Nalini "regrets" the killing of the former
Prime Minister and claims that the real conspirators have not been booked yet.
As we all know that on May 21, 1991, Rajiv Gandhi was
assassinated at Tamil Nadu's Sriperumbudur by a woman suicide bomber of Sri
Lanka's Liberation Tigers of Tamil Eelam (LTTE) during the Lok Sabha poll
campaign. The killing was largely seen as a brutal fallout of his decision to
send over 1,000 Indian forces to the island nation in 1987 to disarm the Tamil
rebels. In the suicide bomb, at least 14 others, in addition to Rajiv Gandhi,
were killed.
The Congress had termed the top court order to release
convicts of Rajiv Gandhi Assassination ‘totally unacceptable' and ‘completely
erroneous’. It had also stated that the convicts have been released from the
prison and not acquitted, and should not be seen as ‘heroes’. The Congress is
set to file a fresh review plea in Supreme Court challenging the decision to
release six convicts in the Rajiv Gandhi assassination case.
The Central Government had also filed a review
petition in the Supreme Court against the November 11 order allowing the
release of all convicts in the Rajiv Gandhi Assassination.
The Centre said the Supreme Court order granting
remission to the convicts was passed without affording it an adequate
opportunity for hearing despite it being a necessary party to the case.
The Centre submitted before the court that, "It
is extremely crucial to mention here that out of the six convicts who have been
granted remission, four are Sri Lankan Nationals.
Granting remission to the terrorist of a foreign
nation, who had been duly convicted in accordance with the law of land for the
gruesome offence of assassinating the former Prime Minister of the Country, is
a matter which has international ramifications and therefore falls squarely
within the sovereign powers of the Union of India.”
It has been argued in the centre’s petition that "the absence of UOI assistance to the apex court while adjudication of the present matter has resulted in admitted and glaring breach of principles of natural justice and has, in fact, resulted in a miscarriage of justice.“
The Centre has also argued that procedural lapse on
part of the convicts had resulted in non-participation of the Union in
subsequent hearings of the case. It had thus said that in such a sensitive
matter the assistance of Union of India was of paramount importance as the
matter has huge repercussions on the public order, peace, tranquility and
criminal justice system of the Country.
“Convicts, while filing the present SLP had not made
Union of India a party respondent to the said SLP despite it being a necessary
and proper party. It is evident that the principles of natural justice, the aim
of which is to secure justice or to put it negatively to prevent miscarriage of
justice have been grossly compromised vide Order dated 11.11.2022” the plea
also stated.
A brief report of what happened on the fateful night
of 21st May 1991.
When Rajiv reached a campaign rally in Sriperumbudur,
he left his car and began walking towards the dais where he was to deliver a
speech. Along the way, he was garlanded by many well-wishers, Indian National
Congress workers and school children. The assassin, Kalaivani Rajaratnam
(popularly known by her assumed names Thenmozhi Rajaratnam and Dhanu), approached
and greeted him. She then bent down to touch his feet and detonated an RDX
explosive-laden belt tucked below her dress at exactly 10:10 PM.
Rajiv Gandhi, his assassin and 14 others were killed
in the explosion that followed, along with 43 others who were grievously
injured.
The assassination was caught on film by a local
photographer, Haribabu, whose camera and film was found intact at the site
despite him also dying in the blast.
Nalini’s ‘guilt’ lay in her association with the
killer squad and accompanying them to the venue of the assassination in
Sriperumbadur on that fateful night.
Nalini’s death sentence has been commuted to life
imprisonment on the recommendation of Sonia Gandhi. Rahul Gandhi and Priyanka
said they have no malice towards the convicts.
The celebration by Tamil Nadu parties and certain
sections of Tamil diaspora reinforces one belief that their emotions for Tamil
cause (& possibly Tamil Nationalism) is so overpowering that the
assassination of their own Prime Minister is worthy of condoning.
The Supreme Court held that the decision to eliminate Rajiv Gandhi was precipitated by his interview to Sunday magazine (21–28 August 1990), where he stated that he would send the IPKF to disarm the LTTE if he returned to power. Rajiv Gandhi also defended the signing of the Indo-Sri Lanka accord in the same interview. The LTTE decision to kill him was perhaps aimed at preventing him from coming to power again.
The interim report of the Jain Commission created a
storm when it accused M. Karunanidhi the former Chief Minister of Tamil Nadu of
a role in the assassination, leading to Congress withdrawing its support for
the I. K. Gujral government and fresh elections in 1998.
But later, Strong LTTE sympathizers Vaiko with MDMK
and Thol. Thirumavalavan with VCK and Seeman with NTK supported Congress under
Sonia Gandhi in the past.
The government of the late Chief Minister, J
Jayalalitha, wanted the prisoners released in February 2014 and in March 2016.
The Cabinet of Edappadi Palaniswamy, after obtaining expert legal opinion,
passed a resolution more than a year ago recommending release of the seven
under the Governor’s unfettered power under Article 161. Purohit, then Governor
of Tamilnadu thwarted their move.
AG Perarivalan, one of the seven who was still in his
teens when the SIT picked him up for buying two nine-volt battery cells,
approached the Supreme Court for relief. It ruled the Governor of Tamil Nadu “will
be at liberty” to decide Perarivala’s application under Article 161 as deemed
fit.
In the 2001 Norway peace talks, Prabhakaran told the
press that the assassination of Rajiv Gandhi was a sorrowful event. In 2006,
LTTE spokesman Anton Balasingham told the Indian television channel NDTV that
the killing was a "great tragedy, a monumental historical tragedy which we
deeply regret".
It is a fact that the two Dravidian parties – headed
by Karunanidhi, MG Ramachandran and Jayalalitha – had allowed LTTE to indulge
in their militant activities on Indian soil and were tolerant of their
wide-ranging criminal and anti-national activities on Indian soil. This mood
which was created by the political Dravidian Tamilandu leaders had made some
Dravidian elements to openly celebrate the release of 6 convicts by giving them
Hero Welcome forgetting that the Supreme Court had not exonerated their heinous
crime but only given them freedom on the ground of Mercy – Good Conduct –
Having Served Enough Jail Terms.
Even in this ‘Rarest of Rare Case’ the Apex Court had
flawed and flawed terribly – more so, the conspiracy to murder Rajiv Gandhi was
to thwart the possibility of him returning to power in the 1991 election and
that too by Militant Organization which,
unfortunately, had support from Tamilnadu people and its governments.
This angle of our national security and integrity was ignored by the Supreme Court which was overshadowed by its concern for MERCY AND GOOD CONDUCT of convicts.
Alas, the fact of four of the 7 Convicts being Sri
Lankan Citizens had never been properly considered/dealt with by the Apex
Court.
Mercy shown by Sonia was also added confusion to the
Court, as Rajiv was husband of Sonia and her statement could not be ignored.
Law is a Dark
Room – is a famous quote apart from another one – Law is a Donkey – meaning
thereby – Law is for Dunce. Mercy for Guilty is a product of Dark and Dunce
Rooms. In fine, Misplaced Mercy for Guilty is Misplaced Justice and Cruelty to
Innocent Victim. It is a tragic truth that even in “Rarest of Rare Case” Mercy
had done Injustice and cruelty to the assassinated Prime Minister’s Soul.
Let me end with the quote of Adam Smith with which I
have started the editorial:
MERCY TO THE GUILTY IS CRUELTY TO THE INNOCENT.
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