In 2019, in the US state of Louisiana, Archie Williams was exonerated after 36 years of wrongful incarceration for rape and attempted murder. He had never committed this crime.
His exoneration came through after a 20-year battle waged on his behalf by the Innocence Project – an organisation that works for people who have been wrongly convicted. The district attorney, as the representative of the state, has apologised to Williams and as per Louisiana’s compensation law, he is entitled to a maximum of $250,000 for his wrongful incarceration.
The world only recently heard Williams’ story when he took part in the reality TV show America’s Got Talent. His tale makes one thing very clear: Not everyone convicted by a court is a criminal. A judgment could go wrong and destroy the life of an innocent person.
Archie Williams performing on America’s Got Talent. Photo: Screengrab
Thinking about Archie Williams and judicial errors, it is hard to not remember Perarivalan. This man has no access to an institution like the Innocence Project to fight for justice on his behalf. But two nine-volt batteries that he had bought without knowing why and the two confessions he made that were progressively distorted have confined him to prison for 29 years now, ever since he was picked up by the Central Bureau of Investigation (CBI) after former prime minister Rajiv Gandhi was assassinated in 1991.
In India, an innocent person wrongly convicted has to struggle for justice entirely on his own. Especially if this person is a member of a backward community, with no economic power or social capital. It has now been established beyond doubt that Perarivalan is innocent. Yet governments and the courts have consistently delayed his release. As he enters the 30th year of his imprisonment today (June 11, 2020), the judicial system still insists that he fight for his release. He was arrested a month before his 20th birthday and has been imprisoned ever since.
In any case, it’s hard to believe that an Indian judiciary and government would have the courage to accept Perarivalan’s innocence, apologise for the error of justice and compensate him for his bereft life.
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Dashed hope after dashed hope
More cruel than the silence of death is the silence of justice. For those who are in its clutches, life is torturous. After the Supreme Court ruled in September 2018 that the state government could independently decide on Perarivalan’s release, the Tamil Nadu cabinet recommended the release of the seven convicts in the Rajiv Gandhi assassination case, forwarding it to governor Bhanwarilal Purohit. But for 19 months, the governor made no decision.
The 19-month-long wait was perhaps more torturous than the 29-year imprisonment. When Perarivalan’s father Kuyildasan fell ill, his mother Arputham Ammal had no way to call upon her son for help. And when the governor finally responded, he destroyed the hopes of everyone who had believed that Perarivalan’s release was imminent.
On March 20 this year, state law minister C.V. Shanmugam disclosed that the governor would make a decision on the release of the seven convicts only after the report of the Multi Disciplinary Monitoring Agency (MDMA) was submitted. (The MDMA comprises the CBI and the Research & Analysis Wing, India’s foreign intelligence agency, and was set up to examine the conspiracy in the Rajiv Gandhi assassination case.) The law minister’s disclosure did not just shock Perarivalan’s family, but the whole of Tamil society. Each person who hopes for the release of the seven convicts understands that this prolonged delay in delivering justice is undue and unjust.
It is surprising that the governor has suddenly developed a concern for the report of the MDMA. Anyone interested in the Rajiv Gandhi assassination case knows that only the MDMA can go beyond the seven convicts and take the case to the real culprits. But for almost 20 years, the agency has done nothing to take the enquiry to the next level.
One of the last photographs of Rajiv Gandhi, taken just before his assassination, by the freelance photographer Hari Babu, believed to have been tasked by the LTTE’s Sivarasan. Dhanu, the actual assassin, is standing behind the girl in a white shirt.
It is not surprising, however, that long before the governor became interested in the MDMA report, Perarivalan was convinced it was important. After all, he struggles every moment to prove his innocence.
At the special court of the Terrorist and Disruptive Activities (Prevention) Act (TADA) in 2013 and later at Madras high court in 2015, Perarivalan had filed petitions seeking the same MDMA report that the governor has now sought. When the high court refused to admit the petition, Perarivalan appealed at the Supreme Court. Only then were the MDMA reports, submitted in sealed covers in the TADA court at regular intervals, opened by the judges. The judges expressed their displeasure when they saw that most of the reports were either empty of facts or about foreign travels. The reports exposed how the CBI and the R&AW handled the assassination case of a former prime minister. The MDMA was a monumental failure, spending tax money ostensibly to seek a foreign angle to the assassination conspiracy. It is thus a bittersweet irony that the governor will decide on the release of the seven convicts after seeing a report that the judges found unsatisfactory.
Also Read: Rajiv Gandhi Assassination: To Uphold Justice is to Release the Seven Convicts
The CBI and the Jain commission report
But the demand of the governor to see the report has given us an opportunity to revisit the confusions made by CBI and other institutions in their enquiry into the assassination for over 29 years, as well as their deliberate attempts to keep certain things secret so the real culprits would remain free.
The list of injustices in this case begins from the fact that no political leader, member of a terrorist organisation, international dealer or agent was arrested. Instead, ordinary human beings who would not have benefitted politically or in any bigger way through the assassination of a prime minister were arrested and sentenced to death.
Even as the governor seeks the report of the MDMA, it would make sense for someone – anyone – to talk of the Jain Commission’s report, which went into the conspiracies around the assassination in detail.
The Jain Commission report, submitted in nine volumes on March 7, 1998, recommended further enquiry into at least three important aspects of the assassination case. These were:
1) The ‘godman’ Chandrasamy. According to the Jain Commission, the documents pertaining to Chandrasamy’s movements on the day of the assassination had mysteriously disappeared and the details of his wireless phone calls were not available. The commission recommended a CBI investigation into Chandrasamy, who was known to be in touch with international terrorist organisations. Yet the CBI never brought Chandraswamy, who died in 2017, into their enquiry.
2) The Jain Commission named 21 suspects in the case. Not one of these suspects has a CBI chargesheet against her or him. The CBI in fact scuttled the enquiry by claiming a focus on a larger, more elaborate foreign conspiracy.
3) The CBI never investigated who made the belt bomb (the improvised explosive device) that Thanu had used to assassinate Rajiv Gandhi and where it was made. Even when Colombo-based Nixon, alias Suren, confessed to the CBI that one Sekar had prepared the explosive in Chennai, the CBI and the SIT made no enquiry in that direction, according to Jain Commission. The Supreme Court, in fact, wondered why Nixon, who was in the custody of the Sri Lankan government, had not been interrogated. Justice M.C. Jain concluded:
“The investigation was not made in relation to the origin and make of the Improvised Explosive Device as that would throw much light in the larger conspiracy. If this investigation had been conducted the whole gamut of persons involved in the conspiracy would have come to light.”
Thus the investigating agency, which could not track the person who made the bomb, found it just to make someone a primary convict because he got the batteries for it with no knowledge of why the batteries were needed. Two nine volt batteries sent Perarivalan to jail. The CBI said the batteries were used in the belt bomb which killed Rajiv Gandhi, with no evidence apart from Perarivalan’s confession.
According to the CBI, on August 14, 1991, and August 15, 1991, Perarivalan had confessed to buying the batteries, which made him a primary accused. Right from the start, Perarivalan had firmly stated that his confession statements were distorted. Yet the petitions he filed to this effect in the Poonamalle TADA court were repeatedly set aside.
V. Thiagarajan. Photo: http://www.bpspaorissa.gov.in
In 2013, enquiry officer V. Thiagarajan of the Indian Police Service who had worked as a superintendent of police in the CBI and had recorded the confessions of the 17 accused in the Rajiv Gandhi assassination case, made a shocking revelation to the media. Thiagarajan said that he had failed to record Perarivalan’s confession verbatim and added that Perarivalan had not known about the conspiracy beforehand. In 2017, Thiagarajan filed an affidavit to this effect in the Supreme Court. This kind of affidavit from an officer of his rank was unprecedented. But the move did not have the impact it ought to have had. Perarivalan is still behind bars, fighting for justice.
The confessions of the 17 accused recorded by V. Thiagarajan under the TADA were the only evidence submitted by the CBI to establish a conspiracy in the Rajiv Gandhi assassination case. There was no other evidence because the CBI had found none.
If confessions were enough to hand out sentences in a case described as huge in this country, do we need enquiries into other cases? Is it not a fundamental point in justice that no confession without corroborating evidences or witnesses is valid? Confessions can be forcibly extracted. They could be lies, they could even be bought. According to section 25 of the Evidence Act, the court will not accept a confession made to a police officer as valid proof of a crime.
To the CBI’s advantage, however, a confession made under Section 15 of the TADA could be considered evidence and used against the accused. Of the 26 people who had faced a judicial enquiry in the Rajiv Gandhi case, only 17 were made to confess. Nine persons without confessions were released and declared innocent. The only evidence against the seven convicts facing endless imprisonment is their own confessions.
In 1995, the Central government withdrew TADA, which had been described as anti-human rights and draconian. In 1999, the 26 persons originally accused in the Rajiv Gandhi case, including Perarivalan, were acquitted by the Supreme Court from all the TADA charges filed against them. Yet, even after TADA was withdrawn, even after the accused were acquitted from cases filed under TADA, the confessions they had made under the Act continue to hold good.
In the Bilal Ahmed Kaloo case of 1997, the Supreme Court had ruled that confessions under TADA cannot be considered as evidence in other crimes or used to decide punishments. But in 1999, in the Rajiv Gandhi case, the Supreme Court rejected its own ruling. In an interview in 2017, Justice K.T. Thomas, one of the Supreme Court judges who had sentenced the Rajiv Gandhi convicts to death, said it was illegal to punish someone using confessions made under TADA when the Act itself was non-existent.
Democracy and injustice
I am at a loss to understand how a democracy of educated people could allow such blatant injustice and so many legal loopholes to exist. The desperate voice of Perarivalan saying that his confession was wrongly recorded and the subsequent voice of the enquiry officer confirming the veracity of Perarivalan’s statements never reached the ears of the lady of justice. I really fail to understand why the government or the court has failed to take cognisance of the legal changes and developments in Perarivalan’s case. Even after he has completed two life sentences for a crime he never committed, the courts and governments are reluctant to give him justice. The court says the state government has the authority. The cabinet sends the decision of release to the governor for approval. The governor approaches the Centre. The Centre goes to the court and the court says once more that the state government has the authority. This torturous game in the name of justice seems to have no end.
Tamil Nadu governor Banwarilal Purohit. Photo: PTI
On December 30, 2015, Perarivalan had sent the governor a petition for pardon that sought his release under Article 161 of the constitution on the basis of Thiagarajan’s confession. In 2017, he filed a petition in the Supreme Court, seeking the suspension of his sentence and his release pending the final reports of the CBI and MDMA’s enquiries. Nobody paid heed to him. But when the court directs the state to inform them whether any decision has been taken in respect of the petitioner’s claim under article 161, the state runs to the governor and the governor seeks the MDMA report. And the release of an innocent man remains trapped in that triangular prison formed by state, Centre and court.
When the judiciary, the governments and society declared that the investigations were over and the seven accused were convicts, Perarivalan said the investigation was not over till the reports of the MDMA were out. He kept alive a case that had been declared dead a long time ago. Nobody cared about the MDMA and further investigation into the larger conspiracy as much as Perarivalan did. The case has been in its final stage for almost six years now. It was only when the Supreme Court said that the state government had the liberty to make a decision on his Article 161 petition that Perarivalan began to hope that this game was about to end. But the governor turned what could have been a full stop into a comma. He asked for the MDMA report based on which he will make a final decision and thus conveyed that the case is not yet at the end.
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If the MDMA report was so significant, shouldn’t the judgment of the case be based on the report? When people involved in the case demanded that the enquiry continue on the lines of the MDMA and Jain Commission reports, nobody listened. But those who had no time in 29 years to even look into the MDMA report now use it as an excuse to prolong the injustice against the seven people charged in the case.
The Tamil Nadu government sought the governor’s approval only for a mercy petition, considering the long period of the sentence Perarivalan and the others have already undergone. It did not intend to prolong the case by opening a new investigation. If the report of the MDMA set up on the recommendation of the Jain commission is so important, it should exclude these seven people and continue the investigations.
The Supreme Court must act
A Supreme Court bench on January 14 this year observed that there was no way a decision could be arrived at since there was no progress in the case. Later, on January 21, it directed the Tamil Nadu government to reveal the present status of the petition filed by Perarivalan. This is the truth. That the Central government thinks it’s possible to keep the case alive by denying the release of the seven people is a gross act of injustice.
Please remember that the governor took 19 months to respond to the cabinet decision. The judicial institutions have consistently weakened the spirit of Perarivalan and the other six convicts in the case by putting them through the punishment of delayed processes. Perarivalan is haunted by his own isolation and by his ageing parents. He seeks release only on the basis that he is innocent.
Judicial errors are not uncommon. The court should admit that what happened in Perarivalan’s case is a clear judicial error. But to maintain silence even after the error has been established is criminal.
Just as the Supreme Court commuted Perarivalan’s death sentence to life because of presidential delay, it should adopt the decision of the Tamil Nadu cabinet and order the release of the seven convicts by citing gubernatorial delay.
Supreme Court building. Credit: The Wire
Could the Supreme Court pass such an order when the release of life convicts is a subject pertaining to state authority? A precedent was set in 2019, when the Tamil Nadu government released 1,500 life convicts on the occasion of the late chief minister M.G. Ramachandran’s birth centenary, but not the Muslims among the life convicts. In protest, four Muslim life convicts filed a case in the Madras high court and the court ordered their release. The state government took the case to the Supreme Court on an appeal and in January 2020, in the case of the Tamil Nadu home secretary Vs Nilofer Nisha, the Supreme Court ruled that the high court does not have the power to release the convicts. However, considering the good conduct of the four Muslim convicts and the long period of sentence (17 years and less) that they had served, the Supreme Court used its special power under Article 142 of the constitution to order their release.
“We are clearly of the view that in these circumstances this is a fit case where we should not send this respondent to another round of litigation. Therefore, in exercise of our power under Article 142 of the Constitution we direct the release of the respondent,” said the judges.
With a similar sense of justice, the Supreme Court should now put an immediate end to Perarivalan’s three-decade-old struggle for fair play.
Jeya Rani is a Chennai-based journalist.
Translated from the Tamil original by Kavitha Muralidharan.