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November 27, 1999
ELECTION 99
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Rajiv killers may get longer reprieveN Sathiya Moorthy in Madras With Congress president Sonia Gandhi seeking reprieve for Nalini, and the Madras high court returning Governor, Justice Fatima Beevi's rejection of mercy pleas, the four condemned prisoners in the Rajiv Gandhi assassination case have got a reprieve. Coupled with the pending mercy petitions before President K R Narayanan, on which a decision may not be made known until the governor's review-result are known, the assassins may have got a longer reprieve than expected. The Madras high court verdict, passed by Justice K Govindarajan on Thursday, puts the ball back in the court of the Tamil Nadu government, where it all emanated. The governor cannot take a decision on the mercy petitions independent of the state cabinet's view, the court held, citing the Constitution and the Supreme Court decisions. Justice Govindarajan did not approve of the state taking umbrage under the government's business rules, or the fact of Chief Minister M Karunanidhi, as the home minister, too, forwarding the mercy petitions to the governor, without the cabinet's recommendation. "There is as much politics as law over the pending issue," says a knowledgeable source, in this regard. "Obviously, the state government and the ruling Dravida Munnetra Kazhagam wanted to absolve itself of taking sides in the matter. Obviously again, only with this in mind the governor, who was a former judge of the Supreme Court, had passed her orders, rejecting the mercy petitions. But the Madras high court verdict now has put the ball back in the government's court." Even as legal experts are said to be weighing the option of the government, or the governor, appealing against the single-judge verdict of the Madras high court, further embarrassment may have been caused by Karunanidhi's declared position on capital punishment. "In principle, I am against the award of capital punishment, and 67 countries in the world, including the UK, have abolished capital punishment," he has been saying since the issue has cropped up. The last time he reiterated this was hours before the Madras high court verdict was pronounced on Thursday. Talking to newsmen, Karunanidhi also reiterated another point of his. That the death sentence awarded to the four accused in the Rajiv Gandhi case "was a cruel punishment to a cruel act". This, at best, is ambiguous, as Karunanidhi is on record that he would not elaborate on this statement of his: whether he thought that a cruel punishment was justified by a cruel act; or, whether the punishment itself was as cruel as the act, and hence both need to be condemned with the same vehemence. "It is this literary flourish of a political nature that has now been put to test by the Madras high court verdict, unless it is challenged," says the source, referring to the DMK's unenviable political postures on the Sri Lankan issue, before and after the Rajiv Gandhi assassination, that cost the party dearly in the post-assassination polls of 1991. "Now, the state cabinet of the DMK will have to take a decision, one way or the other," he says, adding that the question of the governor having to accept it may still remain, if Justice Fatima Beevi had a different view. What has added to the high drama surrounding the issue is Sonia Gandhi seeking reprieve for Nalini, whose husband, Murugan, too is a condemned prisoner in the case. "Their execution, based on the Supreme Court review verdict, may orphan their young daughter, born in prison," the source points out, justifying Sonia Gandhi's appeal to President K R Narayanan, on the Nalini matter. "But that may have also won for the Nehru-Gandhi family, the sympathies of the LTTE," he points out, as an after-thought. However, there are those who argue that the President should not act on Sonia Gandhi's 'impulse', as he is dealing with a 'state subject of great importance, which may be cited as a precedent, in any number of cases, including the Bombay blast case. Indications are that the President is awaiting the Union Cabinet's recommendations on the mercy petitions, but the home ministry is said to be in no great hurry. "The home ministry officials may say that they are evaluating the large number of mercy petitions received in the case," says the source. "That by itself should not make a difference to the legal position, as the volume of mercy petitions, or the number of pages in any, should not weigh with the decision-making authorities, as both of them could be organised in any given case. Instead, the Centre may be waiting for the state governor to finish the process, before taking a decision of its own." There are, however, a few issues involved in the case, though it may be too early to consider: What if the decisions of the governor and the President are opposed to each other? What if the President and the government are persuaded by the appeal of Sonia Gandhi, as the widow of the slain leader? While a known section of the ruling National Democratic Alliance opinion, like those of the Pattali Makkal Katchi, and of the Dravida Munnetra Kazagham and the Marumalarchi Dravida Munnetra Kazagham, to a lesser extent, may favour clemency for the condemned prisoners, there is also said to be a silent minority within the ruling apparatus that may consider the same on a 'larger political perspective, with the long-term goals of a 'Hindu India' in mind'. "But they would rather have the courts, or the state government take the decision for them, as it runs counter to their own known 'nationalist' positions," says the source. In this context, the source also refers to the death of 15 others, nine of them police personnel, who also perished with Rajiv Gandhi. He says that the Supreme Court verdict relates to their killing, as well. "That means, we are referring to a cold-blooded, well-calculated massacre of the Bombay blasts, or Coimbatore blasts kind. But in this case, the victims were fewer in number, though there was the high-profile Rajiv Gandhi among them. Which means, a mercy petition admissible in this case, could set a precedent, for others to follow." But he himself refers to the contra-indications rendered by the three-judge Supreme Court bench that heard the Rajiv case appeals, as also the review petitions, later. "The apex court, using its own logic held that the now-defunct TADA -- Terrorist and Disruptive Activities (Prevention) Act -- was not applicable to the Rajiv Gandhi case hearings, but accepted on record, the evidence recorded under TADA. Maybe, extending that logic further, it can still be argued that the evidence rendered under TADA is no evidence under the Evidence Act, and hence no case could be said to have been proved against the accused, and they, set at liberty." Alternatively, says the source, the Centre can consider the unusual step of referring the 'TADA question' to a larger Constitution Bench of the Supreme Court, before taking up the mercy petitions for active consideration. "After all, the ambiguity caused by the apex court verdict on the TADA question will also affect a few other pending cases, including the Bombay blasts case."
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