What Rajiv Gandhi’s killers’ release means for crime & punishment

“When I went to meet Perarivalan, he had already spent 30 years in jail. He was holding the bars, with tears streaming down his face. If you look at these prisons, you realize what a terrible punishment it is to keep a person for a decade, two decades, in this case, 33 years in jail. It’s a punishment worse than death. And then you understand how cruel it is when people say a person should spend his life in jail. Reform is the key. Making the person a useful part of society is the central focus of punishment.” That is how Colin Gonsalves, a senior advocate of the Supreme Court of India, described his meeting with A G Perarivalan, one of the seven people prosecuted for the assassination of former Prime Minister Rajiv Gandhi. He was released by a Supreme Court order on May 18, 2022. Also Listen: Supreme court frees Rajiv Gandhi assassination convicts The apex court invoked its special powers under Article 142 of the Constitution to free Perarivalan. The benefits of that order were extended to the remaining convicts in the case --- Nalini Sriharan, Ravichandran, Saanthan, Murugan, Robert Payas and Jayakumar. After an appeal by Nalini, the remaining six convicts were released on November 12, after serving more than three decades in prison. The nation is in an uproar, with heavily polarized opinions on the remission and what it might portend. The Centre has moved the Supreme Court, seeking a review of the judgment, while the Tamil Nadu government has called it a historic ruling that reinforces the cornerstone of democratic principles. We speak to Senior advocate Colin Gonsalves, constitutional expert Sanjay Hegde and retired police officer Julio Ribeiro to look at the larger questions this case brings to mind --- questions on life term, remission and the objective behind punishment. What if other life-termers seek freedom? There must be several death-row convicts whose sentences have been commuted to life term. What if all of them seek remission now, citing this case? And soon enough, one of them did. Just days into the release of Nalini and the others, self-proclaimed godman Swami Shradhanand, who is serving a life term for murdering his wife for property, pleaded with the Supreme Court to free him. Sanjay Hegde, a constitutional expert and a senior advocate at the Supreme Court who had appeared in the Swami Shradhanand case, shares, “Swami Shradhananda had enticed a beautiful woman from a well-settled marriage. She had four daughters. He indicated to her that she could get a son with his blessings. She left her husband, who was a diplomat and India’s high commissioner in Australia, and married the Swamiji. The Swamiji lived in her palatial house in Bangalore. And then one day, he gave her an overdose of sleeping pills in her morning coffee and buried her. It is possible that she was even buried alive.” The man was sentenced to death by the sessions court and the high court. But when the matter came up in appeal before a two-judge bench at the Supreme Court, one judge gave him the death penalty, and another judge maintained that he will get a life sentence, but he will never get remission. The matter then went before three judges, who ruled that as an alternative to the death penalty, the judiciary itself could say that remission would not be granted for at least a certain period of time or for the rest of a convict’s life. So that is how this concept of life term till the rest of one’s natural life got a legal basis, says Sanjay. Does Swami Shradhanand’s appeal for freedom, seeking parity with the Rajiv Gandhi assassination case, hold ground then? Sanjay, who had also appeared for Nalini’s case, believes there cannot be any comparison between the cases. “Nalini’s is a case that stands on its own fact where the SC used its powers under Article 142 of the Constitution. Special powers under Article 142 permits the Supreme Court to pass any order that it deems to be just where there is no law on the point. As far as Shradhanand’s case is concerned, there is a separate Supreme Court judgment on the facts of his case. I don’t see how he can get the benefit. The legal position today is that judges, as an alternative to the death sentence, can impose a sentence of life imprisonment without remission for a specific period of years or for the rest of your life,” Sanjay insists. Will remission embolden criminals? Top cop Julio Ribeiro, who used to be the Mumbai police commissioner and the director general of Punjab police during the Khalistani insurgency, believes the Rajiv Gandhi assassination convicts should have been in prison for the rest of their lives. The nonagenarian Padma Bhushan awardee says, “I think killing our Prime Minister is a very serious matter and I’m really surprised that they decided to release these people because of pressure from the Tamil Nadu government and the state’s opposition. I feel that when you do not hang these persons, at least they should be in prison for the rest of their lives. They should not be allowed to go. Others who are thinking of doing the same should learn, should be deterred from doing what they want to do. Otherwise, everybody gets very bold. And now, there are people who have been doing all sorts of wrong things and getting off. It’s not funny.” So, under regular circumstances, how do you quantify a life term? Life is indeterminate, says Sanjay, adding that for the purposes of calculation of remission, a life sentence was to be treated as 20 years of imprisonment. One-third of that was eligible for remission, which is around six years. So, a person serving a life term is eligible for being released at the end of 14 years, unless otherwise specified in the facts of the judgment delivered in a convict’s case. But remission is not a matter of right, he stresses. It’s part of normal administrative policy. A life sentence is exactly that, a sentence for the rest of your life. And remission is subject to good conduct and is reviewed on a case-by-case basis --- it’s got a lot of riders associated with it. What of others who have been prematurely released? Nalini and her fellow convicts being freed brings to mind yet another order for premature release that had been passed not too long ago, on Independence Day, in fact. Both Julio Ribeiro and Sanjay Hegde speak of the Bilkis Bano gangrape and murder case, where a pregnant woman was gangraped and seven members of her family, including a toddler, were killed during the 2002 Gujarat riots. On August 15, 2022, the 11 convicts serving life term in that case were freed by the Gujarat government under its 1992 remission policy. On being asked whether the release of Nalini and her fellow convicts will set a wrong precedent, Julio brought up the Bilkis Bano case, saying, “Well, these precedents are being set quite normally. For example, in the Bilkis Bano case, the government has already released those people prematurely, and I think that it was perhaps even more dastardly than the Rajiv Gandhi case. They have been talking all the time about how women should be respected. And here were women who were raped and murdered because they belonged to another community. Even small children were mercilessly butchered. Such releases weaken the whole judicial process and people get used to being let off. That is not a good thing.” Constitutional expert Sanjay Hegde lays bare the facts of the Bilkis Bano judgment, saying, “Technically, the accused in the Bilkis Bano case were sentenced to life imprisonment. They were not sentenced to life imprisonment with any rider that they would not get remission. All that the Supreme Court recently decided in the Bilkis Bano case was what would be the policy which would govern the facts of the case. There is an earlier judgment which said that whatever is the policy which holds the field at the time that they were first sentenced, that will be the policy. The earlier policy of the Gujarat government allowed even people who had been guilty of rape and murder to be released under remission. The later policy does not allow such releases.” In the Bilkis Bano case, the accused were sentenced in 2008, and the later more stringent policy was formed around 2012. So, it was held that the earlier liberal policy of 2008 would apply in their cases. That’s how they became eligible for release. The courts do not go on the merits of the case or what they did or did not do. The order was based on the policy that was applicable for the accused during the time of sentencing. Sanjay adds, “Now, of course, after the outcry, there have been review petitions and the Supreme Court is hearing it, but we do not know which way that case will go.” Bilkis Bano, the rape survivor, has moved the Supreme Court, challenging the release of the convicts. Does a lifetime behind bars leave room for reform? Questions keep piling up, with no easy answers in sight. Should a life term actually be an entire lifetime behind bars then, without remission? Does that leave room for reform, which is held to be the main objective of punishment? Senior advocate Colin Gonsalves asks a pertinent question: “What’s so terrifying about a reformed person coming out free in society? If I was the home minister of the country, I would take these reformed individuals and make them the prison minister. Because who would understand the prison system and reform the prison system better than a person who suffered? We in society and our politicians pretend to understand what penal provisions and criminal law mean, but they don’t know anything about how to handle jails. And that’s why our jails are miserable places of torture.” Every judge will say we need to reform, but we never reform, feels Colin. “We are a country full of revenge, not reform. Revenge is the theme in society today and with governments today. Nobody looks at the humanitarian and the humane angle of penal law. I think we can turn people who have committed the most heinous crimes into very good citizens. It’s a story that the Indian government should be proud of rather than go on this revenge path,” Colin signs off. Anchor: Jasleen BhallaAudio production: Anil Chauhan