The Rajiv Gandhi case serves as a timely reminder that political or media trials often do not meet the standards of the right to fair trial.

Voices Thursday, June 05, 2014 - 05:30
By Sudha Ramalingam The assassination of Rajiv Gandhi affected most people and altered the way we lived our lives quite dramatically. On 22nd May 1991, I was on holiday with my family at Jalpaiguri, West Bengal waiting for a taxi to go sight-seeing. The owner of the guest house rushed to inform us of the news that he had heard on the radio. We learnt that Rajiv Gandhi had been killed at Chennai along with several others, including policemen who were on security duty. Among those who were reported dead was a close family friend. Around that time, misinformation and rumours about casualty and the perpetrators was aplenty. Much to our relief, we later learnt that our friend had survived the blast. A police officer informed us that Jalpaiguri district like many others had come to a standstill. He added that people in the district were agitated, angry with Tamils and advised us not to step out of the guest house. When I insisted that I would like to at least walk around the marketplace and neighbourhood areas, he told us √Ę‚ā¨Ňďpeople here do not know the difference between Tamil and other south Indian languages. So when anyone asks you please tell that you are talking Malayalam, Telugu or Kannada√Ę‚ā¨¬Ě. Equipped with that advice, we ventured out. Jalpaiguri, as the police officer said was simmering with people congregating on roads. Except the odd tea shops, all other establishments were closed. No newspaper arrived due to general disruption of traffic. On-lookers were suspicious of us and were curious to know where we had come from. We told them that we are from Trivandrum and that we speak Malayalam. It was an era with no mobile phones. Telephone lines were not working either and we could not get in touch with anyone back home. We were stranded at the guest house for the next two days and had to make do with minimum groceries that they already had. As trains were also cancelled, we could leave Jalpaiguri only on the 24th. A police officer told us that they believed that the assassination was perpetrated by Sikhs in Tamil Nadu. As days passed by, several other theories surfaced: involvement of Mossad, the Israeli intelligence agency, CIA and the MI6 were suspected much before the LTTE. As an activist belonging to the People√Ę‚ā¨‚ĄĘs Union for Civil Liberties (PUCL) since its inception by its founder Late Jaya Prakash Narayan, I have been long involved in the campaign against death penalty. Likewise PUCL has also been opposing oppressive and draconian laws like Terrorist and Disruptive Activities (Prevention) Act, 1987 √Ę‚ā¨‚Äú popularly called the TADA. Rajiv assassins were tried under TADA among other laws. TADA is an extra-ordinary criminal law that gave broad powers to law enforcement agencies. It marked a great departure from the regular criminal justice process enshrined in the Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act. Several provisions in the TADA were violative of human rights. Among others, TADA criminalised free speech and whoever advocated directly or indirectly cessation in any part of India was punishable under this Act. In general criminal law, confession before a police officer is not admissible as evidence. Hence no one can be convicted on the basis of their confession alone. In TADA, confession before a police officer not below the rank of Superintendent of Police was made admissible thereby incentivising coercive police practices. It provided for preventive detention up to a year and police custody for 60 days. Presumption of innocence of the accused was also shifted with the accused deemed to have committed the offence until he proves himself not guilty. A Special Investigation Team investigated Rajiv assassination case and a Special Court constituted under the TADA Act, tried the case. All the 26 persons accused of the crime were found guilty and sentenced to death by the said Court. This was unprecedented and regarded as a politically motivated conviction. The Supreme Court, on appeal from the TADA Court, acquitted all the accused of the charges under TADA finding that their activities do not fall under the definition of √Ę‚ā¨Ňďterrorist activity√Ę‚ā¨¬Ě as enunciated under the act. In ordinary criminal laws an appeal from the trial court of District Sessions would lie before the High Court and then only will the Supreme Court be moved. When the Supreme Court found the accused not guilty under TADA, it ought to have sent back the case for appreciation under the ordinary criminal law viz. Indian Penal Code, Arms Act, Explosive Substances Act as the conviction was mainly on the basis of the confessions obtained from the Accused as admissible under TADA and not under the other penal laws. Instead, the Supreme Court confirmed the death sentence of 4 accused, Murugan, Shanthan, Perarivlan and Nalini, and sentenced others to various terms. Of them Nalini√Ę‚ā¨‚ĄĘs punishment was commuted to life imprisonment. I have personally met all four of them in prisons and several others who were convicted by the TADA court and released later. I helped Sri Lankan citizens like Kangasabapathi and Vijayanandan who were kept in the Special Camp for Refugees in Vellore after their release to re-join their families outside India. Meeting and interacting with them made me understand that the accused who faced trial had no major role to play in the crime. The masterminds of the assassination had all died or absconded. It was only those who were pawns and unwittingly caught in the web of conspiracy who were apprehended and charge sheeted. The Investigating Officer Ragothaman√Ę‚ā¨‚ĄĘs recent statement that Perarivalan did not confess to the crime of purchasing battery for commission of the crime has brought to light the fact that the entire trial was a sham. The Supreme Court should have suo motu taken cognizance of this statement and passed appropriate orders exonerating Perarivalan or in the least ordering re-trial. The Supreme Court while remitting the death sentence of the convicts unlike the earlier cases added an explanation that √Ę‚ā¨Ňďlife imprisonment means end of one√Ę‚ā¨‚ĄĘs life, subject to any remission granted by the appropriate Government under Section 432 of the Code of Criminal Procedure, 1973 which, in turn, is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code√Ę‚ā¨Ňď. Jayalalithaa√Ę‚ā¨‚ĄĘs move to free the convicts the very next day is definitely motivated by the compulsions of electoral politics and will be subject to scrutiny by the Supreme Court. However, the move is welcome as the persons concerned have languished in prison for decades. Applying the same yardstick, all other convicts suffering life imprisonment for similar or more years in Tamil Nadu ought to be released by the State government. The Rajiv Gandhi case serves as a timely reminder that political or media trials often do not meet the standards of the right to fair trial guaranteed in the Constitution and in international instruments. Anxious to seem effective and to appease the citizenry, the government prosecutes and even persecutes innocents. Subject to severe media attention, judges are not immune to this anxiety and award the death penalty. The need of the hour is strict adherence to human rights norms and re-evaluation of the death penalty in light of our track record of wrongful convictions and unfair trials. Sudha Ramalingam, is an advocate and human rights activist.
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