Rajiv assassination convicts: why Article 161 is politically significant in TN

A few weeks back, when actor Sanjay Dutt was awarded a five year jail term by the Supreme Court, the nation was debating Article 161 of the Indian constitution - thanks to Justice Markandey Katju. The same Article 161 is now getting into the popular legal lexicon of Tamil Nadu owing to the swelling public and political opinion that the Rajiv Gandhi assassination convicts, facing the gallows, should be pardoned by the state Governor. The immediate provocation for this demand is last week’s Supreme Court verdict on Devinderpal Singh Bhullar that refused to reduce his death sentence to a life term. After Punjab, the next biggest impact of the verdict was on Tamil Nadu because 50 percent of the death-row convicts with rejected mercy petitions are from the state. [caption id=“attachment_699824” align=“alignleft” width=“380”]  Sriharan alias Murugan seen in a court in Chengalpattu in this June 15, 1991 file photo. Reuters[/caption] Of these, at least three - Murugan, Santhan and Perarivalan - have enormous political and emotional bearing. The trio had been sentenced to death for their alleged involvement in Rajiv Gandhi’s assassination and their mercy petitions had been rejected. Human rights groups, campaigners against death penalty and political parties are unanimous that their death sentence ought to be commuted. Most of them argue that the trio have already spent 22 years in prison and hanging them now will amount to an unjustifiable double punishment. Even former Supreme Court judge, Justice KT Thomas, who was a member of the SC bench that awarded them the death penalty, came in support of the argument. He said hanging them will be constitutionally incorrect. He even played the conscience card by saying that it was his misfortune to have presided over the bench. The trio’s case, with the same argument is pending in the Madras High Court, which had stayed their execution. Now, the fear in the legal, human rights and political circles in the state is that the Bhullar verdict of the SC will be binding on the High Court and their plea might be rejected. Therefore, the only option to save them is a pardon by the state governor under Article 161, which reads like this: “The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.” Political parties such as DMK, MDMK, VCK and the PMK have already demanded gubernatorial pardon. The DMK President and former chief minister M Karunanidhi has asked the government to immediately convene a cabinet meeting, pass a resolution and send it to the Governor for action. “Whenever the Centre gives its nod for a hanging, we are afraid of the three persons convicted in the Rajiv Gandhi assassination case. To save the lives of the three - Santhan, Murugan and Perarivalan - Tamil Nadu should experiment with Article 161,” said MDMK leader Vaiko. Under Article 163 of the Indian constitution, the Governor functions under the advise of the chief minister and the cabinet except in discretionary circumstances. Customarily, the Governor goes by the advise of the government. Seemingly, the idea of 161 hadn’t dawned on the Tamil Nadu politicians in 2011, when the state assembly had passed a resolution requesting the then president Pratibha Patil to reconsider the clemency petition of the trio. Or probably there was no ground for such a last resort attempt. But the Bhullar verdict has dramatically changed the scene now. The chief minister Jayalalithaa had said in 2011 that the resolution was in respect of the sentiments of people and based on the requests from various quarters including political parties. Under the present circumstances, in which the Sri Lankan Tamil ethnic issue is of considerable political consequence, the government requesting the governor for pardon for the trio cannot be ruled out. The state unit of the Congress, already under fire on the Sri Lankan issue, will be hard-pressed not to oppose any such move. Further more, both national and local media have been carrying sympathetic stories on the exemplary behaviour of the three in jail. Studying from the jail, one of them, Perarivalan, even topped an Open University diploma course. Reportedly, he is aiming for a PhD now. His old mother, who has been relentlessly campaigning against the death penalty for his son and the others, is a recognisable face in the media. Although Karunanidhi is quite vocal on the issue now, it may be recalled that his government had refused to pay heed to widespread requests to release another convict Nalini, who had been in jail for an equal period. In 2010, Karunanidhi had said that her release was a “major issue” that needed to be decided at the national level and the state couldn’t unilaterally take a decision. Nalini was originally awarded death sentence along with Murugan, Santhan and Perarivalan, which was subsequently commuted to life term at the request of Congress president Sonia Gandhi. She had delivered a child with Murugan in jail and her daughter, now a medical student in England, has made innumerable requests for the release of her mother, and pardon for her father. Meanwhile, in a first-of-its-kind development, Perarivalan will be heard by the Central Information Commissioner (CIC) in Delhi on Monday from the Vellore central jail, on his complaint against the President’s office and the home ministry, which refused to tell him the grounds for the rejection of his mercy petition. Reportedly, he has sent several queries under the RTI act to both the offices, but never got a reply. Subsequently, he sent a telegram to the CIC three months ago which led to Monday’s hearing.