RAJIV GANDHI ASSASSINATION CASE

The final judgment

The Supreme Court, holding the LTTE alone responsible for the assassination of Rajiv Gandhi, awards death sentence to three of the 26 accused and life imprisonment to four persons and acquits the rest.

PRAVEEN SWAMI
in New Delhi

THE battle between the facts of Prime Minister Rajiv Gandhi's assassination, and the curious fictions authored about it, has been decisively resolved. Nine days short of the eighth anniversary of his death, the Supreme Court affirmed that members of the Liberation Tigers of Tamil Eelam (LTTE) were alone responsible for the assassination. Justice K.T. Thomas' judgment reads: "There is not even a speck of doubt that the criminal conspiracy to murder Rajiv Gandhi was hatched by at least four persons comprising (LTTE chief) Veluppillai Pirabhakaran, (intelligence chief) Pottu Amman, (hit man) Sivarasan and (women's wing chief) Akila."

However, the Union Government-appointed Multi-Disciplinary Monitoring Agency (MDMA) is yet to submit its report on Justice M.C. Jain's bizarre inquisition into the assassination. And those sentenced to death by the Supreme Court are certain to move review petitions in which the MDMA's findings could be a key issue. The last echoes of the human bomb explosion at Sriperumbudur are yet to fade away.

The Supreme Court was disposing of appeals by the 26 accused against the death sentence awarded to them by the Designated Court of Judge V. Navaneetham in January 1998. The trial court pronounced all the accused guilty of a spectrum of offences under the provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and Sections 120-B (conspiracy) and Section 302 (murder) of the Indian Penal Code (IPC), read with various sections of the Explosive Substances Act, the Passport Act, the Foreigners Act, the Wireless Telegraphy Act and the Arms Act (see chart).

The content of the judgment

Contrary to the impression that initial reportage may have conveyed, the Supreme Court has not provided any judicial letter of absolution to 19 of the 26 accused. All the 26 persons were indeed acquitted of TADA charges, and 18 of the 19 accused now released from jail were cleared of being participants in a criminal conspiracy to assassinate Rajiv Gandhi. But separate sentences they received for other related crimes, including those under the Arms Act and the Explosive Substances Act, were confirmed by the Supreme Court. Indeed, counsel for defence, Senior Advocate N. Natarajan, chose not to argue against these sentences. This group was released because all its members had completed their sentences. B. Robert Payas (A-9), S. Jayakumar (A-10) and P. Ravichandran (A-16), found guilty of participating in criminal conspiracy, had their death sentences commuted to life imprisonment. Only S. Shanmugavadivelu (A-15) was totally acquitted of any criminal act, since he was charged only under TADA.

How did the three-Judge Bench of Justices Thomas, D.P. Wadhwa, and Syed Shah Mohammad Quadri arrive at its conclusions? All three judicial accounts accept the exclusive role of the LTTE in shaping and executing the conspiracy. Its genesis lay in the India-Sri Lanka Accord of July 29, 1987, the instrument through which Rajiv Gandhi and Sri Lankan President J.R. Jayewardene sought to recognise the sovereignty of the island nation and resolve the insurgency in eastern and northern Sri Lanka. A reluctant LTTE was dragged into the agreement under pressure from India, and almost immediately became embroiled in a bloody conflict with the Indian Peace-Keeping Force (IPKF) posted in the Tamil majority areas. V. Prabakaran, the LTTE supremo, described the accord as a "betrayal" by India.

ANU PUSHKARNA
Justice K.T.Thomas

Prime Minister V.P. Singh rapidly reversed his predecessor's schizoid Sri Lanka policy, but by early 1991, the Congress(I) appeared back on the road to power. The LTTE's core concern was Rajiv Gandhi's stand on the agreement. In a magazine interview in August 1990, Rajiv Gandhi backed the accord and criticised V.P. Singh for withdrawing Indian troops from Sri Lanka. The conspiracy to assassinate Rajiv Gandhi was then set in motion on Prabakaran's orders, Natarajan conceded, to ensure that the accord was not again put in place, a move that would have subverted the LTTE's objective of achieving a separate Tamil Eelam state in Sri Lanka.

According to the account of the Special Investigation Team (SIT) of the Central Bureau of Investigation (CBI), the first batch of conspirators arrived in India shortly after the magazine published the interview on September 12, 1990. S. Vijayan, his wife V. Selvaluxmi and her father S. Baskaran registered themselves as refugees in Rameswaram. They were seen off in Jaffna by the Sriperumbudur hit team's boss Sivarajan and his aide Subha, and were to provide shelter to them after the assassination, the prosecution said. Vijayan's house was also used by Sivarajan, before the SIT surrounded his Bangalore safehouse and the LTTE group committed suicide, to send wireless messages to Prabakaran and Pottu Amman.

None of the three judges disputed this sequence of events, but rejected the SIT's understanding of their import. The mere fact that all three knew Sivarajan, Justice Wadhwa argued, did not mean that they were aware of the conspiracy and its object. Vijayan had indeed confessed that Sivarajan told him on May 22, 1991, that "the work was finished and that Rajiv Gandhi had been killed", a statement that the prosecution said made clear he was waiting to know the results the assassination squad had obtained. But, Justice Wadhwa said in his judgment that "the evidence that they had knowledge of the conspiracy is lacking," even in their confessional statements.

In any case, Justice Wadhwa made clear, "mere knowledge of the existence of a conspiracy is not enough." "One has to agree to the object of (the) conspiracy to be guilty." Of this again, the judges found no evidence. Vijayan and Baskaran, while guilty of keeping an illegal wireless set, had no way of knowing what the coded transmissions Sivarajan and his collaborator Nehru were sending to Sri Lanka actually were. Indeed, while Justice Wadhwa found the convictions of Vijayan and Baskaran for giving shelter to members of the hit squad to be acceptable under Section 212 of the IPC, he argued that Selvaluxmi was guilty of "merely living with her husband and merely on that account knowledge and intention cannot be attributed to her, particularly when no overt act is alleged against her."

Justices Thomas and Quadri broadly agreed with Justice Wadhwa's line of argument, but not the specifics of his acquittal of Selvaluxmi on all counts. In the end, her conviction under Section 212 along with those of her husband and father was confirmed by a majority of two to one. The 19 appellants acquitted of a role in the criminal conspiracy benefited from similar positions on the questions of their knowledge of the conspiracy and their consent to it. However, the trial court's convictions for various secondary offences committed by them were upheld. In general, their confessional statements under Section 15 of TADA did not disclose explicit knowledge of the contours of the conspiracy or its aims and objectives.

The most important differences among the three judges, however, hinged on the fate of Robert Payas, Jayakumar and Ravichandran. The death sentences on them have been commuted to life imprisonment; in India this means a minimum of 14 years in jail. Justice Wadhwa said that the three deserved to be acquitted of charges of being participants in the assassination conspiracy. Although Payas knew Sivarajan well and participated in sending wireless messages, Justice Wadhwa said, this did not mean that he knew their contents. "Suspicion, however strong, cannot take the place of proof,'' he wrote in his judgment. In the other two cases too, Justice Wadhwa found inadequate evidence of complicity, pointing to a wireless message from Sivarajan which stated that he, the belt-bomb killer Dhanu and aide Subha alone knew of the object of the conspiracy.

ANU PUSHKARNA
Justice Sayeed Shah Mohdammed Quadri

Justices Thomas and Quadri differed on this perception. Both relied in part on evidence of Payas' deep links with the LTTE and evidence suggesting that he waited in his home on the eve of the assassination for a message from Sivarajan. Sweets were distributed at Payas' house on the day of the assassination, witnesses said. Jayakumar's confessional statement, for its part, said that he had seen Sivarajan set out for Sriperumbudur with a 9-mm pistol. Witnesses recounted Sivarajan's repeated visits to Jayakumar. "We therefore hold without hesitation," Justice Thomas wrote, "that (the) prosecution has succeeded in proving that A-10 (Jayakumar) was an active participant in the conspiracy for (the) assassination of Rajiv Gandhi."

If the death sentences for Payas, Ravikumar and Jayachandran were reduced to life imprisonment, the judges had no hesitation in confirming the death penalty awarded to Nalini (A-1), Santhan (A-2) and Murugan (A-3) by the Designated Court. The LTTE intelligence wing member, Santhan, was one of Sivarajan's collaborators in the murder of Eelam People's Revolutionary Liberation Front leader K. Padmanabha in Chennai in 1990, and a close confidant. He was despatched to India as part of the LTTE's hit squad along with Sivarajan on May 9, 1991. Murugan, Nalini's former lover and now husband, inducted her into the conspiracy, suggesting to Sivarajan that he would recruit his girlfriend for the task of garlanding Rajiv Gandhi at a public meeting. This made clear he knew the former Prime Minister was a target. G. Perarivalan alias Arivu (A-18) was sentenced to death for purchasing the 9-volt battery used in the belt-bomb which Dhanu strapped around her waist. A single passage in his confessional statement made clear that this battery was used in the bomb. Since the only way he could have known this was prior to the blast, and on the basis of corroborative evidence, the judges came to the conclusion that Arivu had prior knowledge of the assassination attempt.

On Nalini's fate, the judges differed sharply. Justice Thomas' argument pointed to the fact that Nalini had been drawn into the plot only as a consequence of her relationship with Murugan. "One gets the impression, on reading her confession, that she was led into the conspiracy by playing on her feminine sentiments," an unfortunate turn of phrase that may provoke some ire among feminists. The fact that she participated in the actual commission of the murder brought her the death penalty, Justice Thomas contended. Also, the fact that Murugan, the father of her child, was to hang, and the personal reasons for which she joined the plot were relevant, he said. Neither Justice Wadhwa nor Justice Quadri endorsed this reasoning; their finding was that her crime was not mitigated by circumstances.

Legal issues arising from the judgment

If the judgment's findings on the charges relating to various sections of the IPC against the accused appear incontrovertible, its finding that TADA was not applicable to the facts of the assassination is certain to provoke a lively legal debate in the years to come. In essence, the three judges held that none of the TADA charges against each of the accused had relevance. For the assassination did not meet the criteria for what constituted a terrorist crime. Sub-Section 3(1) of TADA defines a terrorist act as one carried out "with intent to overawe the Government as by law established or to strike terror in people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people."

Justice Thomas' argument perhaps most succinctly outlines the contours of the Bench's argument. He relied extensively on the seminal 1994 Supreme Court judgment in the Hitendra Vishnu Thakur & ors vs. State of Maharashtra and ors., delivered after charge-sheets were filed in the Rajiv Gandhi case. In the Hitendra Vishnu Thakur case, the Supreme Court had held that "unless the (criminal) act complained of falls strictly within the letter and spirit of Section 3(1) of TADA and is committed with the intention as envisaged by that section by means of the weapons etc. as are enumerated therein with the motive as postulated thereby, an accused cannot be tried or convicted for an offence under Section 3(1) of TADA."

Justice Thomas reasoned that there was no evidence to suggest that the LTTE's intention had been to overawe the Government of India (as envisaged in Section 3(1) of TADA) although they were bitterly critical of the India-Sri Lanka Accord in general and Rajiv Gandhi personally. Although the expression 'terrorist' can be used to refer to any person for acting to "deter the Government from doing anything or refrain from doing anything," the Judge said that was not Prabakaran's intention. The judgment noted the LTTE supremo's personal sense of betrayal against Rajiv Gandhi and his conviction that the India-Sri Lanka Accord would subvert the organisation's core political objective. On pages 27 and 28 of his judgment, Justice Thomas cites at length an editorial in the LTTE journal, Voice of Tigers, to support the argument that the organisation was not hostile to the Indian Government per se, and quotes Prabakaran as telling newsmen in April 1990, that he was "not against India or the Indian people but against the former leadership in India who is against the Tamil liberation struggle and the LTTE".

ANU PUSHKARNA
Justice D.P. Wadhwa.

Similar arguments were advanced by Justice Wadhwa. "When the prosecution during the course of the trial, which lasted over a number of years, had taken the stand that (the) killing of Rajiv Gandhi was a terrorist act, it cannot now turn about and say that (the) killing itself was not a terrorist act but was committed to achieve the object of conspiracy which was to overawe the Government. As a matter of fact, in the case of Kasi Anandhan, who was a member of the Central Committee of the LTTE, it has come on record that he met Rajiv Gandhi in March 1991, when Rajiv Gandhi supported the stand of (the) LTTE and had admitted that it was his mistake in sending IPKF to Sri Lanka and wanted (the) LTTE to go ahead with its agitation. That being the evidence brought on record, there is no question of it now contending that there was conspiracy to overawe the Government."

But not all observers are convinced with this line of reasoning. Special Public Prosecutor E. Jacob R. Daniel, who dealt with the Rajiv Gandhi case from its outset, said that "intent has to be inferred from the act itself. The Supreme Court has not seriously considered why Rajiv Gandhi was chosen to be killed. It was because the LTTE wished to coerce the Government of India to act in some ways and not others. Why was the assassination ordered in 1991 and not earlier, if revenge was the only motive? I would have been happier if this issue had been properly discussed by a Constitution Bench, for there are many questions that remain unanswered." Daniel's argument requires more serious scrutiny than has come about so far. Can the assassination of an important political figure be sundered from the impacts that their action will have on the affairs of government and the state?

On the other end of the spectrum, defence lawyers are dismayed at the Supreme Court's decision that irrespective of its decision to strike down TADA charges, confessional statements made under the Act are nonetheless admissible in the trial of related IPC cases. The decision reverses the Supreme Court's earlier decision by two-judge benches in the 1997 cases of Bilal Ahmed Kaloo vs State of AP, and Kalpnath Rai vs State. The court now accepted the overriding legitimacy of the provisions of Section 12 of TADA, which enables Designated Courts to try individuals not only for offences under TADA, but any other offences "with which the accused may under the Code be charged at the same trial if the offence is connected with such other offence." Justice Thomas, like the other two judges, found that "if there was a trial of any offence under TADA together with any other offence under any other law, the admissibility of the confessional statement would continue to hold good even if the accused is acquitted under TADA offences."

DEFENCE lawyers say this issue will be a central feature of their revision petitions in the cases of the four accused facing death sentences. "What the Court has done," says defence counsel Rama Subramaniam, "is to signal to policemen that every serious crime should have had a TADA charge pegged to it so that the confessional statement could be used." In the Rajiv Gandhi case, confessional statements under TADA were central pieces of evidence.

At Sriperumbudur on May 21, 1991. The belt-bomb assassin, Dhanu (wearing flowers), edges close to Rajiv Gandhi, as Kokila Vani and Congress(I) volunteer Latha Kannan greet him.

D.R. Karthikeyan, the SIT chief, told Frontline that it would have been near-impossible to secure convictions without the special provisions of TADA. The Supreme Court judgment will profoundly affect other trials where similar issues are at stake, including that of the alleged assassins of Punjab Chief Minister Beant Singh.

But the more important factors in what remains of the Rajiv Gandhi assassination case are certain to be political. The MMDA has yet to submit its findings on the "larger conspiracy" that Justice M.C. Jain's Commission of Inquiry had claimed lay behind the Sriperumbudur bombing. Whether a BJP-appointed body will be able to resist endorsing the scurrilous references made by Justice Jain during various phases of his enterprise remains to be seen. Jain had variously insinuated the involvement of religious conman Nemi Chand Jain alias Chandraswami, politician Subramanian Swamy and Tamil Nadu Chief Minister M. Karunanidhi, and a number of shadowy international intelligence agencies and arms dealers.

Those released from jail have already made dark hints about Chandraswami's role in the affair. Such claims, and the ongoing work of the MDMA, are likely to be the ground advocated by the defence for a stay on the execution of death sentences on Nalini and her three associates. The most important fact of the Supreme Court judgment is that it has pinned the blame on the LTTE. But it is impossible to predict just what the MDMA will find, and whether, in the event of its discoveries being pulp fiction, politicians who have transformed Rajiv Gandhi's name into a career asset will have the sense to stand up for the truth.