“Why prolong this agony and false hopes. Please deliver us from this torturous suffering of 27 years with mercy killing” is the anguished cry from Arputhammal, mother of Perarivalan, one of the 7 convicts, whose remission plea stands declined by Central Government. Does the system and State have any answer to the 71 year old mother's desperation?
Yes, it was a heinous crime. Yes, it was an attack on India as Rajiv Gandhi, was our former Prime Minister. How can we forget the pain and anguish the Gandhi family and India experienced in the aftermath of the well planned brutal assassination? The nation was convulsed and the impact is being felt even today. It may therefore seem easy to disregard the agony of the mother and other family members, as of the making of the convicts.
Just imagine this. If the Central Government was supported by DMK or AIADMK members, vital for the survival of the Ministry, would the ‘concurrence’ of the Home Ministry have come? One cannot dismiss this possibility lightly.
It's Politics, stupid, could we then conclude? Legally, the decision is beyond challenge. The convicts had their fullest right to exhaust any and every remedy, inside of law, in the interstices of it, and even those beyond. They had the benefit of entire hierarchical ladder and even before Supreme Court up to the Curative stage. They did not succeed. Then death sentences got commuted to 'life till the end of their lives'. (Read UOI vs Sriharan-dt.2nd Dec, 2015-SC)
Forget not, these convicts got caught in the web of intrigue, spun by the main culprits, by sheer force of circumstances and it was the merciless language of Sec.120-B, Indian Penal Code, that did them in. Technically, a co-conspirator is as much a criminal in the ‘act’, even if his role was peripheral and may not have ‘really had full knowledge of the scheme but had skeletal information on need to know basis’ (paras 117 to 176, 200 to 272 and 360 to 362 State Vs Nalini (1999 - SC).
The Gandhi family has gracefully pardoned the convicts with a large heart. The ‘system’ is unwilling to.
Investigating Officer V. Thiagarajan filed an affidavit in Nov, 2017 before Supreme Court, “I did not record the statement of Perarivalan that he was in the dark about the purpose for which batteries were asked to be purchased by him - as it was an exculpatory system and the purpose of recording his confession would have been lost”. Those who led and took part in the investigation have themselves expressed doubts on whether the ‘minor players’ were in on the ‘entire script’ or not.
And please remember that Justice KT. Thomas (SC) a member of the Bench, which delivered the judgment, said this to Indian Express (on November 17th), on his letter dt. Oct, 18, 2017, to Sonia Gandhi requesting her ‘to show magnanimity and convey her willingness for the remission’- he was seeking compassion for “there were serious flaws in the CBI's investigation related to the seizure of `40 lakh in cash from the convicts, which exposed an unpardonable flaw in the Indian criminal justice system”.
Law is not an exact science. It is an art form. The judgment that gets painted on the legal canvass may take its shape, size, and colour from the artiste and from the material on his hand. The painting turns out as the artiste decides. Of course, unlike an artist, here the Judge is circumscribed by legal parameters and precedents. But the imprimatur that a Judge affixes is his own, based on his training and philosophy and ‘his appreciation and understanding of the evidence on record’. There is no arithmetical accuracy at play.
In such a scenario, when the Judge who ruled, feels strong enough to ‘express his doubts’, does it not matter? Should we be dismissive of his contrition as an afterthought of no consequence? Should not the benefit of doubt go to the convicts as law mandates where human rights are paramount, at least for a pardon after 27 years? Is law so immanent that no matter its fault lines, the convicts are doomed for life? Is the system to yield to the individual liberty or is individual liberty totally subservient to system, no matter its exposed chinks and glitches including in investigation? Is the legal edifice cast in iron that the anguished cries of a mother mean little, even after her son has served 27 years in prison for a crime, he may not have been privy to in full?
While one has to concede that we are dealing with ‘convicts of a dastardly crime against India’ and not innocents-do not forget the convicts have served hard and long in jail for 27 long years--twice longer than an ordinary life sentence for 14 years.
Necessarily, therefore, a balance has to be struck and it is the ‘political establishment’ that is vested with the authority, not the Judicial.
Law is in the eye of the beholder and therefore there may have been a need for ‘striking a balance in this instance, instead of the system’s straitjacket route’. As the late Justice M Srinivasan (SC) felicitously put it, “Law is in search of Proof not Truth. Courts may never know whether Truth triumphed or Proof. Only God and convict's conscience know it all”.
That is where one fears that it is the politicians who may have failed miserably by their proclivities and conduct. By exhibiting parochial and emotional tilts, while wearing their allegiances on their sleeves, and badmouthing the decision makers, they may have harmed the cause. There is nothing Tamilian in this cause. It is human; nothing more, nothing less.
Unfortunately, the TN politicians have raised it as a Tamilian pride issue and exposed their negativities. So much so, it became a political football that the Jayalalitha administration decided to ‘release them’ on the eve of elections, making it a party/poll issue. It led to a challenge in Supreme Court and its unconstitutionality was exposed. Our politicians can never change their spots, as nothing beyond politics is in their DNA.
Even now, the lessons may not be learnt. Be it this pardon issue or NEET or Cauvery imbroglio, our TN politicians keep failing us, by ignoring the larger picture and instead espousing their personal interests/prejudices, bordering on the parochial, as if mattering most.
Arputhammal’s agonising cry and wait continue. Our politicians are unlikely to provide any relief. If anything, they may cynically exploit her ‘torturous suffering’ for their own electoral benefits. It’s Politics, Stupid.
(The writer is practising advocate in the Madras High Court)