When A Judge Asks Sonia To Forgive Rajiv's Assassins

Published: November 18, 2017 17:28 IST
The usual place for the standard disavowal, "Views are personal", is in italics at the end of the column. In this case, I am putting my disavowal upfront in the opening paragraph because what I want to say regarding retired Justice KT Thomas' letter to Smt. Sonia Gandhi of 18 October 2017 (reported in The Indian Express, 16 November 2017) is entirely personal. I have not met Smt. Gandhi face-to-face for 18 months nor have I discussed anything connected with this issue with anyone connected with her family, her friends, her household, her office or her senior party advisers. These are my personal views.

It was my first election. I was waiting for Rajiv Gandhi to arrive in my constituency at 9.20 am on May 22, 1991. At a little past midnight, I heard the horrifying news that he had been assassinated at 10.20 pm. I was never to see him again.

The law took its course. Investigations into the assassination were undertaken over several years by TN top cop DR Kartikeyan and his team; tabled before the duly constituted courts; and followed up through the judicial system to its very summit: the Supreme Court of India. The Supreme Court set up a three-member bench headed by Justice Thomas to finally dispose of the appeals. In February 2014, twenty-three years after they were first arrested (that is the way justice works in our benighted nation), the death sentences awarded to several of the accused were commuted to imprisonment for life, that is, they were never to be released from jail till they died.

The Tamil Nadu government sought the immediate  release of these accused in view of the long period they had already spent in prison. The central government, then on the verge of an election it was going to badly lose, did not agree. Nor has the subsequent central government agreed. The Supreme Court is seized of the matter. It is pending at the highest level of our judiciary.

One would have expected a former Justice of the Hon'ble Supreme Court to await the decision of the same court on whether or not to order the release those sentenced to imprisonment for life, as demanded by the state government. Instead, Justice Thomas has written to Rajiv Gandhi's still and forever grieving widow, asking her and her children to inform the President that they, for their part, also desire the release of these persons who, the courts have decided, did have a crucial role to play in assassinating her husband and their father.

He has referred to the release after 14 years of Gopal Godse, the brother of Mahatma Gandhi's assassin, Nathuram Godse, by way of a precedent that might be followed. (As a layman, I see a distinction between "life imprisonment" - which is generally for a maximum of 14 years - and "imprisonment for life", which, I understand, means the rest of the person's natural life; but I may be wrong. I am, after all, only a layman writing as a layman). On the other hand, Justice Thomas says that it is in his capacity "as the judge who passed this judgement" that he has addressed "this letter to you (Sonia Gandhi) so that you can show magnanimity in the matter".

It seems to me (and I speak only for myself) a curious argument to put forward. I am no jurist and I have little knowledge of jurisprudence, but, as an ordinary citizen of this land, I have been brought up to believe that judicial proceedings in any criminal case are instituted and prosecuted by the State and not by the affected individual(s). And courts are not conceived as institutions to seek personal revenge, but as objective upholders of the law. I have also been taught that the fundamental premise of the law is that an accused is presumed innocent until proved guilty. I have also been taught that it is for the courts, including the convoluted process of appeals, and not the affected party, to determine, on the basis of the evidence tendered, whether the person or persons so charged are, in fact, guilty and, if so, the quantum of punishment to be awarded in conformity with the law.

Surely it follows that any judge, especially a Supreme Court justice in the final seat of authority, should be quizzing all concerned on all his concerns and clarifying all doubts in his mind before making his determination, on the basis of the evidence presented, and the injunctions of the law, and within the ambit of the institutions of justice. Justice Thomas and his fellow-judges were charged with that duty. Both his colleagues disagreed with his conclusions. Therefore, the majority carried the day. 

So, rather than seeking the intervention of the affected family, who have played no part in the investigative or judicial processes for the entire quarter century that has passed since they were given, by the accused, the life-long sentence of grieving their irreparable loss, should Justice Thomas not be taking his grievances elsewhere rather than to the affected family?

Had Justice (retd) Thomas written to the current Chief Justice of India regarding the "serious flaws" he has now perceived in the investigation, that would have been understandable, for surely the highest judicial authority must have its own institutional procedures for rectifying "serious flaws" that might emerge after judgement has been passed.

In the instant case, however, the key "serious flaw" detected by former Justice Thomas, after the judgement was passed, is that Kartikeyan and his team failed to trace the origin of Rs 40 lakh found in the possession of the accused. Justice Thomas believes that this "huge sum of money" ("huge" in 1991 terms) came from Chandraswami. Very possibly. He was an extremely dodgy character. He was hauled before the Jain Commission that interrogated him over several days. The Jain Commission's reports were published long before the three-member bench of the Supreme Court was constituted, with Justice Thomas presiding. He and his colleagues could have taken note of the evidence tendered by Chandraswami before the Jain Commission and ordered additional investigation into that potent angle before rendering judgement - or even issued such an order as part of their judgement. They did not. And even if they had, how does Chandraswami's guilt or involvement affect the final judgement on Perarivalan, Nalini and others whose death sentence at the trial court stage has been commuted to imprisonment for life at a higher level of the judicial process? 

The moot question is: Why should a person or persons not involved in either the investigative or judicial processes (such as the Gandhi family) be asked to "show magnanimity in the situation"? What have they to do with the Thomas bench's judgements?

In the interview he has given to The Indian Express correspondent, Arun Janardhanan, while sharing his letter to Sonia Gandhi as "breaking news", Justice Thomas asks the rhetorical question, "If it was not a high-profile case, what would have been the outcome?" And answers his own question with an astonishing disclaimer, "I don't have answers". Then why did he ask the question? Was it not to suggest that because of this "high profile", the sentences handed down were a travesty of justice? 

Frankly, I am both shocked and alarmed. I bow, of course, to the higher judicial wisdom of Justice Thomas but, again, as an ordinary citizen of this country, I would have thought our constitution and the law make it abundantly clear that there can be no distinction made between "high" and "low" profile by anyone, let alone the highest echelon of our judiciary. Even if media and public attention were much higher than usual because the assassinated person was a past and potentially future Prime Minister, surely all should be "equal before the law" for judges and Hon'ble Justices of the Supreme Court? For the presiding judge of a three-member bench to even hint that it was not the facts of the case but its "high profile" that led to the sentences given is to discredit the judiciary and cast serious doubt on the capacity of the blindfolded Goddess of Justice to hold the scales even in her consecrated hands. If Justice Thomas is suggesting that he and his colleagues allowed extraneous considerations to influence their final judgement, that is to call into question the integrity of both the judicial institutions and their processes. Justice Thomas cannot hide behind his answer to his own question, saying, "I don't know the answers". The correct answer by a Supreme Court Justice to his own question should surely have been, "Exactly the same!"

As the presiding judge, Justice Thomas lets us - the unwashed masses - have a peep into how Supreme Court judgements are written. He says he was "upset over these serious flaws (in the CBI investigation) and "shared my concerns with the two others on the bench". While he himself was intending to deliver a minority judgement, the two others were drafting their joint majority judgement. According to Justice Thomas, they mutually agreed that there should be "no criticism or kudos for CBI" in their respective judgements. The gravamen of his present complaint is that the majority judgement" praised CBI officer Kartikeyan wholeheartedly".

So, what is Justice Thomas driving at? Revealing internal squabbles in the Supreme Court? Indicting Kartikeyan? Ordering an investigation into Chandraswami's shenanigans? (Is this even possible after Chandraswami's death in May this year?) Or just transferring the burden on his conscience to the shoulders of others just because they are "high profile"?

The Congress-led UPA government demitted office in May 2014, more than three and a half years ago. The currently serving Rashtrapati-ji is the nominee of the present BJP-led NDA government. Justice Thomas might perhaps have been within his rights had he addressed his concerns to the Prime Minister or the President. But to drag in the bereaved family of that young and promising man who was brutally blown up when he was not quite 47 years of age, is, I submit, Your Honour, disgraceful. They are a magnanimous and compassionate family irrespective of whether or not they choose to respond to your letter.

I rest my case, Your Honour.

(The author was closely associated with Rajiv Gandhi as his Joint Secretary in PMO and as Special Assistant to the Congress President when he resigned from government service to take up an alternative career in politics and the media.)

Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.

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