State of Tamil Nadu v. Nalini (1999 SCC)

By Ipsha Shrivastava

Facts

The case of State of Tamil Nadu v. Nalini or the Rajiv Gandhi assassination case is a landmark case where the former Prime Minister of India, was assassinated. The accused and conspirator Nalini along with 26 others were held liable and were given death sentences.  Rajiv Gandhi was slain by a suicide bomber, Dhanu, on May 21, 1991, while campaigning in Sriperumbudur, Tamil Nadu. Dhanu was among the 14 people killed in the bombing. Dhanu was fitted with a bomb that exploded in proximity to Rajiv Gandhi. Nalini Sriharan, a Tamil lady from Sri Lanka, was the main conspirator in the assassination. She was in charge of obtaining the explosives used in the bombing as well as transporting Dhanu to the killing site.

India took up the role of conciliation, when approached by the Sri Lankan government, to settle the disputes between the Tamil-speaking ethnic minority and the Government of Sri Lanka. The Sri Lankan President Mr. Jayawardane and the Indian Prime Minister along with Velluppilai Prabhakaran, leader of the militant organization, Liberation Tigers of Tamil Elam (hereinafter LTTE) signed the Indo-Sri Lankan Accord of 1987. The signing of the accord resulted in the deployment of the Indian Peace Keeping Forces (IPKF). The IPKF posed a threat to the struggle for a separate homeland, referred to as the ‘Tamil Elam’. The former Prime Minister of India was a major force behind the signing of the accord. Due to the inhuman conduct met out by the Indian Peacekeeping Forces, the minds of the militants were filled with hostility. This resulted in the hatching of the conspiracy which would have served as a deterrent for any government trying to suppress the extremists of Sri Lanka.

In the days following the assassination, Nalini was arrested along with 25 others. A designated court tried and convicted her under the Terrorist and Disruptive Activities (Prevention) Act (TADA). Nalini was condemned to death by the appointed court in 1998, together with three other convicts: Santhan, Murugan, and Perarivalan. The remaining offenders received life sentences or lesser sentences. Nalini filed an appeal with the Supreme Court of India against her conviction and death sentence. Given her young age and the fact that she was the mother of a young child, the Supreme Court upheld Nalini’s conviction but remitted her death sentence to life imprisonment in 1999.

The Tamil Nadu government proposed the release of all seven convicts in the Rajiv Gandhi assassination case in 2000. The Governor of Tamil Nadu, however, refused to allow their release. The Supreme Court granted bail to all seven prisoners except Perarivalan, who remained in jail since he was a Sri Lankan national. In 2018, the Tamil Nadu government recommended that all seven inmates be released. However, the Governor of Tamil Nadu refused to approve their release.

Issues Raised

The case brought up the following challenging issues before the court of law:

1. Whether the accused Nalini and others can be held liable under Section 32 and Section 302 of the Indian Penal Code?
2. Whether the accused can be held liable under Section 3 and Section 4 of the TADA Act?
3. Whether the confession by one of the accused can be admissible as evidence against the co-accused?

Arguments by the Prosecution

Over six years, a criminal conspiracy was hatched and developed. The conspiracy was planned in several stages, one of which was in the year 1990 when three of the accused landed on the Indian shore. Sivarasan was one of the most seriously involved accused who was one of the hardcore, top-ranking militants of LTTE. He was one of the first accused to arrive in India in December 1990. They were primarily intended to secure a resident for harbouring themselves. The next batch arrived consisting of three of the accused who also secured to conceal themselves in an isolated locality. Consequently, the appellants arrived in different batches on the Indian shore.

In the final batch, the most dedicated militants arrived, including Dhanu. With her, came the second accused Santhan, the third accused was Murugan, the fourth accused Shankar, the fifth accused Vijayanandan, and the sixth accused, Ruban. They were seen off at Sri Lanka by Pottu Omman who was the Chief of the Intelligence Wing of LTTE. Nalini, the first accused, shifted in October 1990 and began residing in a house in the High Court Colony at Madras. Nalini, along with all the other accused, made arrangements for the accomplishment of the offense. In pursuance of the plans, they purchased a 9-watt golden power battery and a hideout was prepared in Delhi. Sivarsan, along with Dhanu and her close friend Suba with Nalini waited for Haribabu and then all the five proceeded to the venue of the meeting place, Sriperumbudur. When Rajiv Gandhi arrived at the meeting place, Sivarasn took Dhanu to the rostrum. The explosion immediately took 18 lives. The three conspirators, Nalini, Suba and Sivaran ran away from the site without any delay. They sent the receipt of confirmation of the killing to Pottu Omman through a wireless message. The photographs of the accused had started to appear in the newspapers. Four of the accused, including Nalini and her husband Murugan were arrested. Sivasaran, Suba and many of the LTTE activists committed suicide to escape the punishment of the offence. Pottu Omman, Velluppilai Prabhakaran and Akila, the deputy chief of the Intelligence Wing were designated as ‘absconding offenders’. The remaining 26 persons were accused of offences under Section 302 (Punishment for murder), Section 326 (voluntarily causing grievous hurt by weapons or other means), Section 201 (causing disappearance of evidence of an offence committed or giving false information touching it to screen the offender), Section 212 (talks of harbouring offender), Section 316(culpable homicide causing death) read with Section 120 B of the Indian Penal Code, 1860. They were given the sentence of death.

Arguments by the Defence

The Court held Nalini, the first accused death sentence under Section 3(1)(ii) of the Terrorist Prevention and Disruptive (Activities) Act,  which states as “Whoever with intent (a) to overawe the Government as by law established or (b)  to strike terror in the people or any section of the people  (c) to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or detains any person and threatens to kill or injure such person to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act”. It provides for punishment of death or life imprisonment and a fine if anyone commits a terrorist act.

The above sub-section commits itself to establishing an intention for making anyone liable under this section. The LTTE activists criticized the government but were never aimed at overthrowing any government or striking terror among the people of the country. Velluppillai Prabhakaran addressed a meeting where he blatantly surrendered his weapons and showed his faith towards the Indian Peacekeeping Forces in maintaining the sovereignty and integrity of the country. LTTE has already indicated to the government its friendly ties with India. Even though there was the killing of 18 people in the blast, they never intended that. They were only against the old government, Rajiv Gandhi which they intended to kill. Thus, they never intended to strike terror among the people, even though there was an anticipation of people dying apart from Rajiv Gandhi, but that could not have surely been ascertained. In the order of this, the charges inflicted under Section 3 of the TADA Act, could not be sustained due to the lack of evidence.

Section 4 of the TADA Act, provided for the destruction or killing of any person bound by oath under the constitution to uphold the sovereignty and integrity of India or any public servant shall be deemed to be a ‘disruptive activity’ within the meaning of this section. But consequently, the Lok Sabha stood dissolved then, therefore Rajiv Gandhi will not be classified as a person “bound by oath under the constitution”. Therefore, the charges under the provisions of Section 3 and Section 4 could not be sustained. 

Points of Contention

1. That the appellants were not only involved in the assassination of Rajiv Gandhi.
2. That the appellants were involved in a conspiracy.

The prosecutor took the help of the confessional statements made by the appellants and recorded by the Superintendent of Police, under Section 15 of the TADA Act. The Defence counsel pleaded the inadmissibility of the evidence on the ground that since no offence has been proved under TADA, and hence, the confessions recorded cannot be used as evidence against offences which fall outside the purview of TADA. The learned counsel in retaliation to this, cited the judgment in the case Kalpnath Rai v. The State. It was held that a confession admissible under Section 15 of TADA can be used against the co-accused. But it has its shortcoming of incapacity of cross-examination and it is not given on any oath. Thus the outcome is, that the confession made under Section 15 of TADA can be used against the conspirator but it has no substantive value, only corroborative value.

Judgment of the Case

The Special judge in this case who tried the case found all 26 appellants designated as arraigned, guilty under Section 302 of the Indian Penal Code, 1860 read with Section 120 B of IPC. Section 302 of IPC prescribes punishment for murder. It states that “Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.”  Section 120 B provides punishment for criminal conspiracy. It provides that a person who is a party to the offence of criminal conspiracy shall be punished with either a death sentence or imprisonment for life (Section 53 of IPC) or rigorous imprisonment for a term of 2 years or more. The accused Nalini along with the other co-accused were held liable for the offence of criminal conspiracy under Section 120A of the Indian Penal Code. It is defined as an agreement between two or more parties to do an illegal act or to do a legal act by illegal means. Section 43 of the I.P.C. defines ‘illegal’ as “anything that is an offence, is prohibited by law, or gives rise to a civil action.” The proviso to Section 120A states that merely agreeing to commit an offence constitutes criminal conspiracy, and no overt conduct or illegal omission is required to be proven. Only where the purpose of the conspiracy is the performance of an illegal act that does not constitute an offence is such an overt act required. It makes no difference whether the illegal behavior is the ultimate goal of the agreement or merely a byproduct of it.

The Criminal Procedure Code says that the court should adjourn the case to a future date after conviction. On that date, the prosecution and the defence counsels must bring the relevant material which will have a bearing on the severity of the sentence. But in this case both the hearing on conviction and sentencing were done on the same day within hours. This has gone astray to the rights of the accused.

They were found guilty under the Explosive Substances Act of 1908, Arms Act of 1959, Passport Act of 1967, the Foreigners Act of 1946, and the Indian Wireless Telegraphy Act of 1933. In this case, it was determined that mere knowledge of a conspiracy did not render someone accused a conspirator. It was decided that providing a safe haven for the main accused was not sufficient evidence that the person was involved in the conspiracy; it had to be proved that there was a meeting of minds between the parties.

In Nov 2022, the court ordered the release of all the convicts of the case, due to the unprecedented delay of more than three decades already spent in jail. One of the accused, Perarivalan had spent over 30 years in prison due to the delay of the Governor in the matters of remission. Therefore, the Supreme Court, under Article 142 of the Indian Constitution, invoked special power and ordered his release.

Critical Analysis

The premature release of the convicts has been questioned and taken into account. The decision of the Supreme Court regarding this is totally unacceptable and erroneous. This case has reflected flaws in the Indian judicial system which counts with the unprecedented delay in the trial of the prisoners. The prisoners in most cases undergo their punishment for several years without any trial or investigation. It is not proven whether the person undergoing trial is actually convicted of an offence. It also points out the non-accountability and the arbitrary discretion on part of the Governor holding powers of pardon under Article 161 of the Indian Constitution. The Governor, even after the recommendations from the Cabinet, did not provide assent to the petitions for pardon. This adds to the untimely disposal of the cases. The blast took the lives of innocent people; the accused should not have been released without completing their punishment. But even after this, the prisoners cannot be held back in the prison denying their fundamental rights under Article 20 (Protection in respect of conviction for offences) and Article 22 (Protection against arrest and detention in certain cases). The Tamil Nadu government had proposed the release of the seven inmates of the case, in 2000 as well as again in 2018, but the Governor simultaneously refused to approve the release of the prisoners.

Precedents which work as a major source of law provide that the duty of the court is to transverse and excite information, including personal or any other information, which may be relevant in passing the sentence. The TADA court did not show any effort in eliciting the information from the accused; Therefore, it is an advertent mistake on their part.

While upholding the constitutional validity of the death sentence, the court in its judgment had also held that the State needs to accord for the “special reasons” as to why the case fell in the “rarest of the rare” before announcing a death sentence. The court must take into account the relevant social and financial factors, such as the age of the accused was not taken into account. Nalini who is a mother of an infant child should have a bearing on the sentence passed. The oldest accused was 76 years old and two of the women accused were mothers of minor child should have been considered. It must also be shown that the accused could not be reformed or rehabilitated under any circumstances and would constitute a threat to society.

Finally, the death sentence as a deterrent form of punishment did not accomplish its objective of dissuading potential offenders in the future. “The principle of deterrence is totally a dubious one”. The assassination of Indira Gandhi, the former Prime Minister of India, by Kehar Singh was hunged to death. But this did not act as a deterrent for the accused in the Rajiv Gandhi case. Therefore, it is clear that a death sentence has no deterrent effect, particularly in the areas where political crimes are concerned. The objective of providing punishments is based on the reformation of the criminals. However, the death penalty falls short of the fulfillment of this goal.

Conclusion

The arbitrariness and the irresponsible conduct of the courts in disposing of the cases without proper investigation present a fatal killing of justice to the accused involved in the case. The case of the State of Nalini v. State of Tamil Nadu did not fall into the ambit of the heinous crimes to be accorded a death sentence. The mitigating factors were not taken into consideration. Moreover, the executive power of the Governor to decide upon the petitions for pardoning of sentences is unfair as the Governor even refuses to take into account the decision of the government.

The rights of the prisoners undergoing trials have already succumbed as there is late disposal of trial, it takes for courts more than a decade to investigate and decide cases. This presents another fallacy in the Indian judicial system. Therefore, it is necessary that justice must be provided most appropriately and diligently and it must count on the people who shall be drastically affected by the judgment.