By Denying Release of Seven Tamil Convicts, Centre Is Trampling on Federal Rights

With no real action being taken regarding the release of A.G. Perarivalan and six others in the Rajiv Gandhi assassination case, the state government is undoing years of Jayalalithaa’s work towards championing Tamil Nadu's federal rights.

Seven years have passed since former Tamil Nadu chief minister J. Jayalalithaa made an important announcement. On February 19, 2014, Jayalalithaa told the state assembly that she would release all the seven convicts imprisoned in Rajiv Gandhi assassination case if the Centre did not respond in three days. The announcement was a reflection of how persistent a state should be in protecting its federal rights. She was equally determined when it came to other issues, including the Cauvery dispute, NEET and the Mullaperiyar Dam.

But ever since her death in December 2016, the ruling AIADMK has not made a move towards making the release a reality Purging all efforts taken by Jayalalithaa towards the release of the seven convicts, chief minister Edappadi K. Palaniswami has chosen to buckle under the tyranny of the Centre.

Tamil Nadu governor Bhanwarilal Purohit also continues to maintain a conspiratorial silence on the resolution passed by the state government on the release of the seven Tamil convicts. All through this period, the state government appears to be least bothered about this anti-constitutional act of the governor and the humiliation being meted out to its cabinet – the governor is not invested with the authority to reject a resolution passed by an elected cabinet; he can only endorse it. When the governor stated that he could not decide on A.G. Perarivalan’s mercy petition, no one, including political leaders, raised questions about the status of the cabinet resolution and whether it was forwarded to the President.

Also read: Pardon Perarivalan and Put an End to This Cruel Game of Pass the Parcel

Even after the Supreme Court has said that the state government can independently decide on Perarivalan’s mercy plea under Article 161, the state government chose to go to the governor and is now looking to the president. The governor is meant to be head of state and act out the policies of the state government as part of his constitutional duties. But over successive governments at the Centre, those with political affiliations with the ruling part are appointed, which in turn has an impact on the state – as we have seen in countless examples.

In 1999, when then Tamil Nadu governor Fathima Beevi rejected the mercy petitions of the three convicts sentenced to death, neither the state nor the civil society took it seriously. But things have changed drastically today. The change has been made possible because of the various twists and developments with investigating officers and judges admitting to many lapses in the investigation. Under such circumstances, a public opinion and understanding has emerged – that it is extremely unfair to keep the convicts in prison serving an endless sentence.

Case falls apart

V. Thiagarajan. Photo: http://www.bpspaorissa.gov.in

The strong belief that they were indeed ‘the criminals’ were shaken when V. Thiagarajan, the investigating officer in Rajiv Gandhi case, admitted in 2013 to erroneously recording the confession of Perarivalan. It was then that the fabrications and lapses in the case came to light. There was political uproar across party lines, and even DMK leader M. Karunanidhi demanded a “reinvestigation into the case”.

This led to then CM Jayalalithaa’s renewed interest into the case. She believed that the release of seven convicts was a state subject, because the release of life prisoners has always been a state subject. But since the CBI was involved in the case, and since the Supreme Court had mentioned the Criminal Procedure Code (CrPC) under which they could be released in its commutation order dated February 18, 2014, Jayalalithaa decided to write to the Centre on the issue.

When Jayalalithaa made the announcement in her typical style, it turned out to be “a dream come true” not just for the seven convicts looking to be released or for Arputhammal – Perarivalan’s mother who has been relentlessly fighting for her son’s release – but also for the Tamil society. People in Tamil Nadu believed that the release was now possible since Jayalalithaa was known for her persistence and uncompromising attitude.

But when the then Congress government, which was at the the Centre at the time, went to the Supreme Court and got an order to put the state’s decision on hold instead of expressing its opinion as per CrPcSection 435, the case was again pushed into a quagmire. The Centre decided to not heed to criticism about its high-handed behaviour in a federal structure.

After this move, a long debate about who has the authority to release the seven convicts – the Centre or state – began. While the Centre told the Supreme Court that the state does not possess that power, Jayalalithaa waged a legal battle for the state’s rights. One can understand her seriousness in this issue when she engaged senior lawyer Rakesh Dwivedi on behalf of the state. It clearly established that Jayalalithaa was not ready to compromise on the rights of the state, even in the release of the seven convicts.

But when a five-member constitutional bench ruled in December 2015 that the term “consultation” with the Central government stipulated in Section 435(1) of the Code implies “concurrence”, the release became a question again. But Jayalalithaa was not the one to give up. After winning the election in 2016 and becoming the chief minister again, she wrote to the Centre, asking for its opinion on the release again March 2, 2016.

Also read: Rajiv Gandhi Killing: As Politics Takes Precedence, Convicts’ Wait for Release Gets Longer

Unfortunately, while the case was being sent to three-member bench, Jayalalithaa fell ill and passed away. Today when the time and circumstances are so ripe, after the Supreme Court’s order dated September 6, 2018, the seven convicts would have been released under Article 161 if only Jayalalithaa had been alive.

One may have many reasons to criticise Jayalalithaa, but she never relented to the Centre when it came to federal rights. More so, due to her many confrontations with the Centre while safeguarding Tamil Nadu’s rights and privileges, she become viewed more and more as a national personality to to be contended with.

Politics takes precedence

When the Supreme Court ruled that the TADA act would not be applicable to the crime in 1999 and that the conviction was only under IPC Act, the right to release the seven convicts was naturally vested with the state. It raises skepticism when the Centre is adamant to exercise its authority in the release of the seven convicts alone.

To place the Centre’s double standards in context, one can compare it with Sanjay Dutt’s release in Mumbai bomb attacks case. Sanjay Dutt was sentenced to five years rigorous imprisonment under the Arms Act which was under the ambit of the Centre. But the Maharashtra government released him prematurely by remitting 256 days in 2016. The Maharashtra government did not seek the permission of the Centre.

This raises many questions. If maintenance of law and protecting its authority is the reason behind Centre’s attempts to stall the release of seven Tamils, why didn’t it operate the same way in the case of Sanjay Dutt? Why did not file a case against the Maharashtra government? Why wasn’t it worried about its authority being taken away?

Sanjay Dutt in 1996. Photo credit: Reuters

Sanjay Dutt was involved in Mumbai bomb blast case where 257 people were killed and over 2000 were injured. Why did Centre handle the case with so much apathy? Wouldn’t it have affected the families of victims? If it could allow the Maharashtra government to bypass its authority so easily, why does it want to strangulate Tamil Nadu’s rights alone, while the ambit of the case lies very much with Tamil Nadu under IPC? Is the life of a former prime minister greater than that of ordinary human beings? Even if assuming that the positions they hold decide the values of their lives, wasn’t Gopal Godse, who was charged with killing the father of this nation, released 14 years after his imprisonment?

Why does the Centre want these seven convicts to wallow and die in the dark for over 30 years? Is the Central government worried whether the truths mentioned in Jain Commission report and hence buried, and the conspiracies woven around MDMA investigation would be exposed?

It is not an exaggeration to say that the Tamil Nadu ranks in the top among the states that have consistently fought for its rights in independent India. Over the last 50 years, Tamil Nadu has fought and protected its rights on various issues including social justice, linguistic rights, educational rights, public distribution system and the rights of women, labourers and children. But it is always a huge struggle to protect the rights of a state in a country where diversity and birth-based discriminations are deep rooted. The struggle began in 1958 when states were formed on linguistic basis.

A protracted battle

Perarivalan filed a pardoning petition to the governor on December 30, 2015, stating that he be released under Article 161. No attention was paid to it. Perarivalan drew attention of the Supreme Court and got orders on September 6, 2018 that the State can independently decide on the release of Perarivalan. Legally and morally, the state could have released Perarivalan the next day. What else could the Supreme Court verdict mean? Perarivalan was fighting his own case, and the verdict was based on his eligibility for premature release. The Palanisamy government could have sensibly released him using the orders, which would have paved the way for the establishment of the state’s right under Article 161.

Also read: No Real Evidence Against Him, but Perarivalan Enters 30th Year of Imprisonment

But Palaniswami’s government passed a resolution about the release of seven convicts with over ambitious political motivations, but have not allowed for it to actually happen. The State should have released Perarivalan first under Article 161 as ruled by the Supreme Court and should have passed a resolution for the remaining six convicts in a phased manner. Keenly aware that the governor in charge will not help resolve the crisis, the state keeps falling into the same trap over and over again.

Palaniswami continues to call his government as Amma’s government (Jayalalithaa’s) but he has not shown an iota of her independence and concern in handling the case. Tamil Nadu has been a sad witness to this slave mentality. When the governor sat on the resolution for 29 months and then said he can decide only after seeing the final report of MDMA, the Palanisamy government found an excuse in it and recused itself from the responsibility.  It did not go to the Supreme Court to protect its rights as Jayalalithaa would have done.

Ideally, the State should have put pressure on the Centre to withdraw the governor, who has humiliated the constitution. The DMK, which has a history of leading huge struggles for federal rights, says it would meet the president. Are they in politics without realising the significance of cabinet rights and authority? Even after several legal experts and political observers have repeatedly clarified that the governor can delay the decision on cabinet resolution but cannot deny it the neither the State nor the opposition seems to be shocked by the unconstitutional act of governor, and fight for the redemption of the constitution.

The cabinet resolutions are forwarded to governor as a tradition. When the governor rejects it or inordinately delays it, the State should have the courage to establish its authority. When the governor rejected Perarivalan’s petition, the state had an opportunity to assert its rights. It could have passed a resolution and released Perarivalan on its own, and subsequently the others. DMK leader Karunanidhi had released Tamil nationalist leader Thiyagu, and by doing so had created precedence. But such actions require qualities of leadership and courage.

The AIADMK government had mentioned the release of seven convicts as an important aspect in its manifesto for the 2019 parliamentary elections. But after elections, it never took positive step towards it. The chief minister and the cabinet confine themselves to responding to petitions on cases filed by Perarivalan. Even in the case of the governor, this government never enquired whether the petition of Perarivalan was rejected or the cabinet decision itself. It is again Perarivalan who filed an RTI to the governor’s office for the details.

If only the current rulers had one percent of Jayalalithaa’s courage and understanding of federal rights, “this stripping of state’s rights” wouldn’t have happened. The state government stands exposed as an anti-people, anti-federal government when it comes to this issue. Its actions should rightly serve as a warning to the DMK, which aims to win the forthcoming state elections.

The issue of the release of Perarivalan and the other six convicts is a dangerous example of what awaits Tamil Nadu if the government continues down such a path. This will reflect in all forthcoming issues concerning state welfare. But no party seems to be aware of this grave danger.

Translated from Tamil by Kavitha Muralidharan.