End of the road for now for Rajiv Gandhi case convicts? Centre refuses early release

For over 15 years now, the seven convicts in the Rajiv Gandhi assassination case have been waiting for the doors of their prisons to permanently open. Having served 29 years of their life sentence already, they have made multiple appeals to the courts, different governments and even the Governor for a shot at early release.

However, on Tuesday, the Centre made it clear in the Madras High Court that they have no intention of providing any leniency to those convicted in the assassination of a former Prime Minister.

Additional Solicitor General R Rajagopalan, who was representing the BJP government said, "Any leniency towards the seven, who had involvement in the death of 15 persons including former Prime Minister Rajiv Gandhi, would set a bad precedent, and embolden other accused in similar heinous crimes to plead for early release."

He further pointed out that the Tamil Nadu government plea's in this regard, filed in March 2016, had already been rejected.

Meanwhile, in September 2018, the state cabinet had adopted a resolution under Chief Minister K Palaniswami’s leadership to recommend to Governor Banwarilal Purohit, the release of the convicts - Murugan, Santhan, Perarivalan, Jayakumar, Ravichandran, Robert Payas and Nalini. But over a year later, the Governor continues to remain impassive on the subject, refusing to take a final call.

With this, it seems like all doors and even windows of hope for their release are gradually being closed shut. So, is this end of the road in the convicts' fight for freedom?

"No," says retired Madras High Court judge Justice K Chandru. "This is definitely not the end of the road for them if the state government continues to fight."

He points out that when Jayalalithaa was Chief Minister, she passed a resolution in 2016 to ensure their early release. But the Centre rejected the appeal under section 435 of the CrPc.

Section 435 says that a State Government can only act after consultation with the Central Government in certain cases.

This applies for remitting or commuting a sentence where the offence was - investigated by the Delhi Special Police Esablishment or by any other agency empowered to make investigation into an offence under and Central Act or involved misappropriation or destruction of, or damage to, any property belonging to the Central Government

"However, according to the law, the state only needs to 'consult' the Centre, it doesn't need consent ," says retired Justice Chandru. "The state government has already passed two resolutions and recommended release to the Governor. And now if the Governor refuses to give his answer based on their recommendation, the state government can move court against him," he adds.

However, the former judge and advocates associated to the case say that this seems unlikely.

"We are in shock," says Shivakumar, Perarivalan's advocate. "The state government keeps saying that they have done what they must. When asked about moving court against the Governor, they said they have already sent petitions. They keep saying they will look into it, but it is not moving ahead," he adds.

As far the Centre is concerned, Shivakumar points out that the appeal to the Governor is based on Article 161 of the Constitution (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).

"The Centre should have no role to play in this," says retired Justice Chandru. "Infact their explanation that it is a 'heinous' crime cannot hold ground.  The gravity of any offence stops when a conviction takes place. Only the behaviour of a convict during imprisonment can then decide the release. You cannot claim it to be 'heinous' to prevent release.  You can only see the convict's reformation, progress and jailor's comments on these.  Any conviction must be reformatory and not retributory," he adds.

The former judge also points out that the state government is not taking the matter up against the Governor and the Centre strongly enough. And that this will affect the chances of the prisoners.

Agreeing to this, a prominent human rights lawyer, who spoke on the condition of anonymity, says, "The future is looking bleak for the convicts because the pressure for their release has to come from the state government. They need to mobilise support, if they are for the release, bring people to the roads and protest for what they think is fair. But they will not do that against the current Central government."

He further adds that Centre stands in the way even though the family of Rajiv Gandhi has not opposed early release.

"The state will have to reply to the Centre's latest arguments on January 28," says the advocate. "We can glean how this matter will proceed based on their response."