India & the
Struggle for Tamil Eelam
Rajiv Gandhi Assassination Case - Out of the
TADA net
The Supreme Court accepts the arguments
of defence counsel N. Natarajan to hold that the 26
accused persons committed no offence under the TADA Act,
1987.
Frontline Volume 16 - Issue 11, May. 22 - June 04, 1999
T.S.SUBRAMANIAN
AN important feature of the Supreme Court verdict in the Rajiv
Gandhi assassination case is that all three judges have held that
the 26 accused committed no offence under the Terrorist and
Disruptive Activities (Prevention) Act, 1987. In their order
presiding Judge Justice K.T. Thomas, Justice D.P. Wadhwa and Justice
Syed Shah Mohammed Quadri set aside the conviction and sentence
passed by the trial court against all the accused for offences under
Sections 3(3), 3(4) and 5 of TADA and acquitted them of the charges
under TADA.
This signals a victory for N. Natarajan, defence counsel, who
appeared for 25 of the 26 accused (except Shanmugavadivelu). In the
hearings in the Supreme Court, Natarajan's main contention was that
although the killing of Rajiv Gandhi and its consequences might well
be in conformity with a terrorist act as described in TADA, the
intention specified in TADA was lacking here. The assassination was
mainly the result of Liberation Tigers of Tamil Eelam (LTTE) leader
V. Prabakaran's personal animosity to Rajiv Gandhi, arising out of
his sending the Indian Peace-Keeping Force (IPKF) to the Tamil areas
of Sri Lanka and the IPKF's atrocities against Tamils. The killing
was not meant to strike terror in the people and was not meant to
overawe a government lawfully established, as required by TADA,
Natarajan said. (Natarajan, 67, is senior counsel in the Supreme
Court, practising on the criminal law side. Natarajan was the Chief
Special Public Prosecutor for the Central Bureau of Investigation
(CBI) in the Mumbai blasts case. He was the Special Public
Prosecutor for the CBI in the "Jain hawala" case. He is also senior
counsel for the Tamil Nadu Government for the corruption cases
against former Tamil Nadu Chief Minister Jayalalitha, her former
ministerial colleagues and others.)
In their separate orders, the three judges accepted Natarajan's
arguments and concluded that the accused had committed no crime
under Section 3(3), 3(4) or 5 of TADA.
Justice Thomas found it difficult to "conclude that the conspirators
intended, at any time, to overawe the Government of India as by law
established. Nor can we hold that the conspirators ever entertained
an intention to strike terror in people or any section thereof."
Justice Wadhwa said: "There is nothing on record to show that the
intention to kill Rajiv Gandhi was to overawe the Government."
Justice Quadri declined to maintain the conviction by the Designated
Court for offences under TADA.
ACCORDING to the prosecution, the conspiracy to commit offences
under TADA, which began on July 29, 1987 when the India-Sri Lanka
Accord was signed, subsisted till the Union Government banned the
LTTE on May 14, 1992. Thus, the conspiracy continued even after the
assassination on May 21, 1991, the prosecution said.
The defence contended that TADA could not be invoked for any offence
which created terror because any violent crime automatically created
terror in the victim and the people in the vicinity. This creation
of terror was not the essence of the matter. However, the
ingredients of the terrorist act must be established as spelt out in
TADA if the prosecution were to invoke TADA. A terrorist act could
be counted as one once it conformed to its definition under Section
3(1) of TADA, Natarajan said.
Section 3(1) says: "Whoever with intention 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 does any act or things by using bombs, dynamite or other
explosive substances or inflammable substances or fire-arms or other
lethal weapons or poisons or noxious gases or other chemicals...as
is likely to cause the death of, or injuries to any person... or
damage to, or destruction of property....commits a terrorist act."
Or the act should seek to coerce the governmental authority to yield
to pressure.
But all this would not suffice to bring TADA into play unless the
act was done with the intention as contemplated in TADA, Natarajan
argued.
The intentions contemplated in TADA were three-fold: 1. To overawe
the government lawfully established; 2. To strike terror in people;
and 3. To create disharmony among various sections of people.
The prosecution, led by Additional Solicitor-General Altaf Ahmed,
argued that the first two intentions, namely, overawing a government
lawfully established and striking terror in people, had been made
out by direct and circumstantial evidence. The defence counsel said
that this might not be correct for the simple reason that although
the conspiracy period alleged by the prosecution was long (from 1987
to 1992), no other TADA offence was said to have been committed in
Tamil Nadu during that period. The killing of Rajiv Gandhi was the
first TADA case charge-sheeted and tried in Tamil Nadu. The next one
was the murder of K. Padmanabha, leader of the Eelam People's
Revolutionary Liberation Front (EPRLF), in June 1990 in Chennai, and
some other cases followed.
The prosecution said the conspiracy began when the India-Sri Lanka
Agreement was signed on July 29, 1987 by Prime Minister Rajiv Gandhi
and President J.R. Jayewardene. Jayewardene demanded that the LTTE
be disarmed in order to ensure the island's territorial integrity.
The arrival of the IPKF in Sri Lanka and its actions did not suit
the LTTE, which decided to eliminate Rajiv Gandhi as a warning for
those in power in India not to support the Sri Lankan Government.
The elimination of Rajiv Gandhi was intended to overawe a government
lawfully established and this, in turn, affected the sovereignty of
India. The assassination, therefore, was a terrorist act, the
prosecution said.
The second ingredient regarding the intention, namely, striking
terror in the people, was also present because the murder took place
during a public meeting; a number of persons were killed; and panic
and terror were created.
Natarajan argued that this was a circuitous and non-existent theory,
not supported by existing materials of the case. It had been well
settled in law and in the Supreme Court that striking terror was not
tantamount to terror created in the victim and those who stood
nearby. Terror in law was much greater than questions of law and
order, or even public order. It was creating a psychological fear
not merely in an individual but in society.
Natarajan quoted in detail from the Supreme Court judgment in
Hitendra Vishnu Thakur vs the State of Maharashtra. Justice Dr. A.S.
Anand (now Chief Justice of India) and Justice Faizan Uddin said:
"'Terrorism' is one of the manifestations of increased lawlessness
and cult of violence... 'Terrorism' has not been defined under TADA
nor is it possible to give a precise definition of 'terrorism' or
lay down what constitutes 'terrorism'.
"Even though the crime committed by a 'terrorist' and an ordinary
criminal would be overlapping to an extent but then it is not the
intention of the Legislature that every criminal should be tried
under TADA, where the fallout of his activity does not extend beyond
the normal frontiers of the ordinary criminal activity... The
criminal activity in order to invoke TADA must be committed with the
requisite intention as contemplated by Section 3(1) of the Act by
use of such weapons as have been enumerated in Section 3(1) and
which cause or likely to result in the offences as mentioned in the
said section."
Justices Anand and Faizan Uddin added: "...If it is only as a
consequence of the criminal act that fear, terror or/and panic is
caused but the intention of committing the particular crime cannot
be said to be the one strictly envisaged by Section 3(1), it would
be impermissible to try or convict and punish an accused under TADA.
The commission of the crime with the intention to achieve the result
as envisaged by the section and not merely where the consequence of
the crime committed by the accused create that result, would attract
the provisions of Section 3(1) of TADA.''
Natarajan pointed out that according to the prosecution, the murder
was dictated by Prabakaran's personal motive against Rajiv Gandhi
(and not a terrorist act). This position had been borne out by the
evidence, which made it clear that the animosity developed over a
period of time. When the Agreement was about to be signed,
Prabakaran was pressured to accept it. Prabakaran's reaction as
revealed by his speech at Sudumalai in the Jaffna peninsula on
August 4, 1987 had been brought to the notice of the court. In that
speech, he had said that the "racist" Sinhalese would slowly consume
the Sri Lankan Tamils. Prabakaran said he agreed to India signing
the Agreement since a great man like Rajiv Gandhi had given his word
that the rights, safety and security of the Tamils would always be
protected by India.
Evidence, however, showed that in spite of Rajiv Gandhi's promise,
the IPKF caused untold suffering to Tamils, the defence counsel
said. When 17 LTTE leaders were arrested by the Sri Lankan Navy in
October 1987 and help was sought from Rajiv Gandhi to get them
freed, nothing was done by India. Earlier, another LTTE leader,
Thileepan, had fasted to death in the Jaffna peninsula. All this
left the Sri Lankan Tamils and Prabakaran in particular
disillusioned.
Natarajan said that even according to the prosecution, this was the
motive behind Prabakaran ordering the killing of Rajiv Gandhi. The
Designated Judge in the trial court had said: "From the foregoing
discussion and analysis of evidence, I have no hesitation to come to
the conclusion that V. Prabakaran, the LTTE supremo and the LTTE
organisation, had a very strong motive to kill Rajiv Gandhi."
Natarajan asked: "Where is the evidence to say that it was done to
overawe a government lawfully established?"
The defence counsel said that from another angle also the
assassination might not be construed a terrorist act. Terrorist acts
were committed by a small group of people against a state or a
bigger group. Their object and aim was to terrorise people. So they
had always advertised their acts and owned up responsibility for
them. But evidence in this case showed that the LTTE had in a
sustained manner let it be known to the world that it was in no way
connected with the assassination of Rajiv Gandhi.
It was also in evidence that the LTTE had been in India from 1983
with the goodwill of the people of Tamil Nadu, who were concerned
about the plight of Sri Lankan Tamils. The guerilla warfare in Sri
Lanka waged by the LTTE had been sustained to a great extent by the
help given by the people of Tamil Nadu. The LTTE was aware that it
would lose the sympathy of the people of Tamil Nadu if it was
involved in the killing of Rajiv Gandhi and was, therefore, keen to
distance itself from the assassination. This ruled out the
possibility that the assassination was a terrorist act as
contemplated under TADA, Natarajan said.
Prabakaran feared that if Rajiv Gandhi returned to power, his own
political equations with the Sri Lankan government would be
sabotaged and therefore did not relish the prospect. Natarajan
argued that the assassination resulted, if at all, from this
attitude.
Quoting from Supreme Court judgments, Justice Thomas said: "Thus,
the legal position remains unaltered that the crucial postulate for
judging whether the offence is a terrorist act falling under TADA or
not, is whether it was done with the intent to overawe the
government as by law established or to strike terror in people,
etc."
But the LTTE's attitude towards the Government of India could be
seen from its official publication, Voice of Tigers, which said the
LTTE was "firmly convinced" that the Tamil Nadu Government led by M.
Karunanidhi and the V.P. Singh Government at the Centre were
"favourably disposed" towards it and that the V.P. Singh Government
would create appropriate conditions for the LTTE to come to
political power. Justice Thomas said: "The above editorial is a
strong piece of material for showing that the LTTE till then did not
contemplate any action to overawe the Government of India. Of
course, the top layer of the LTTE did not conceal their ire against
Rajiv Gandhi who was then out of power."
Justice Thomas said: "Nothing else is proved in the case either from
the utterances of the top brass (of the) LTTE or from any writings
edited by them that anyone of them wanted to strike fear in the
government either of the Centre or of any State." He, therefore,
found it "difficult... to conclude that the conspirators intended at
any time to overawe the Government of India as by law established."
He added: There is absolutely no evidence that any one of the
conspirators ever desired the death of any Indian other than Rajiv
Gandhi."
The Judge said the killing of a public servant or any other person
bound by oath would be an offence under the IPC. But such killing as
such did not amount to disruptive activity. Certain types of actions
which preceded such killing alone were regarded as a disruptive
activity through the "legal fiction" created by Section 4 (3) of
TADA. These preceding actions included advocating, advising,
suggesting, inciting or prompting the killing of such persons. But
there was no evidence to show that there was any such preceding
activity.
T.A. HAFEEZ
N. Natarajan, Senior Advocate, who appeared for 25 of the 26
accused.
Justice Thomas said:
"However, there is plethora of evidence for establishing that all
such preceding activities were done by many among the accused
arrayed for killing Rajiv Gandhi. But unfortunately Rajiv Gandhi was
not then 'a person bound by oath under the Constitution to uphold
the sovereignty and integrity of India.'
"The inevitable fallout of the above situation is that none of the
conspirators can be caught in the dragnet of sub-section (3) of
Section 4 of TADA."
The Judge rejected the prosecution argument that the photographs
taken by the LTTE of Fort St. George, Chennai (which houses the
Secretariat and the Legislative Assembly), the police headquarters
and the Central Prison within the Vellore Fort were aimed at
disrupting the sovereignty of India.
According to Justice Thomas, the defence contended that the
conspiracy was hatched only to assassinate Rajiv Gandhi and that
none of the appellants had participated in the conspiracy.
(Natarajan argued that confessions of the accused under Section 15
(1) of TADA could not be made use of to secure their conviction
under Section 120-B read with 302 IPC.) Under Section 15 (1) "... a
confession made by a person before a police officer not lower in
rank than a Superintendent of Police... shall be admissible in the
trial of such person (or co-accused, abettor or conspirator) for an
offence under this Act or rules made thereunder." (Confessions made
under other laws such as the IPC are not admissible as evidence.)
The Judge pointed out that the defence counsel argued against the
admissibility of the confessional statements on the premise that no
offence under TADA could be found against any of the accused. So
they could not be applied in the case of offences outside TADA.
However, Justice Thomas said, Section 12 of TADA enabled the
Designated Court to try jointly, at the same trial, any offence
under TADA together with any other offence "with which the accused
may be charged" as per the Code of Criminal Procedure. "The correct
position is that the confessional statement duly recorded under
Section 15 of TADA would continue to remain admissible as for the
other offences under any other law which too were tried along with
TADA offences, no matter that the accused was acquitted of offences
under TADA in that trial."
Justice Wadhwa also upheld the defence argument that there was no
intent on the part of the accused to overawe the government or
strike terror among people. On interpreting and analysing Section
3(1) of TADA, Justice Wadhwa said: "We do not find any difficulty in
concluding that evidence does not reflect that any of the accused
entertained any such intention or had any of the motive to overawe
the government or to strike terror among people... There was no
conspiracy to the indiscriminate killing of persons. There is no
evidence directly or circumstantially that Rajiv Gandhi was killed
with the intention contemplated under Section 3 (1) of TADA."
Justice Wadhwa added: "We accept the argument of Mr. Natarajan that
terrorism is synonymous with publicity and it was sheer personal
animosity of Prabakaran and other LTTE cadre developed against Rajiv
Gandhi which resulted in his assassination.''
Justice Quadri also agreed that the conviction under Sections 3, 4
and 5 was "unsustainable". He said the charges did not reflect any
intention to overawe the government. Additional Solicitor-General
Altaf Ahmed has submitted that the omission to mention the
ingredient of the charge did not result in misleading the accused
persons, and though the words, "to overawe the government", were not
mentioned in the charge, the charge was not bad in law. "In my
view," Justice Quadri said, "the question here does not relate to
the defect in the charge but to the content of the charge but
without the said germane words in the charge, it cannot be said that
the charge includes the intention to overawe the government... The
appellants are accordingly acquitted of the charges under the TADA
Act."
Justice Quadri said that the confessions recorded under Section 15
of TADA, and admitted in the trial of TADA offences and under
Sections 120-B read with 302 IPC, "can be relied upon to record the
conviction of the appellants for the said offences under the IPC
even though they are acquitted of offences under the TADA Act."
The judges commended the defence team led by Natarajan and the
prosecution led by Altaf Ahmed. Justice Wadhwa said: "Mr. Natarajan,
senior advocate, led the team for all the accused except one. He was
ably assisted by Mr. Sunder Mohan, Mr.B. Gopikirushna, Mr. S.
Duraiswamy, Mr.V. Elangovan, Mr. N. Chandrasekaran, Mr. T. Ramdass
and Mr. R. Jayaseelan. A heavy burden lay on the shoulders of Mr. N.
Natarajan. He carried it with aplomb. His presentation of the case
showed his complete mastery on facts and law. It was a pleasure to
hear him, not losing his poise even for once. He was fair in his
submissions, conceding where it was unnecessary to contest. Mr.
Sivasubramanium, senior advocate, assisted by Mr. Thanan, who
represented the remaining one accused, rendered his bit to support
Mr. Natarajan."
Altaf Ahmed was not far behind in any way, Justice Wadhwa said. The
Judge added: "He in his task was ably assisted by Mr. Jacob Daniel,
Mr. Ranganathan, Mr. P. Parameswaran, Mr. A.D.N. Rao, Mr. Romy
Chacko, Mr. T.G.N. Nair, Ms. Meenakshi Arora, Mr. S.A. Matoo and Mr.
Mariaputam, advocates. Mr. Altaf Ahmed was forthright in his
submissions. He presented his case with learning and assiduity. We
express our sense of gratitude to all the counsel and admire their
profound learning and experience. They did their job well."
When Frontline met Natarajan, he said the investigation commenced
when TADA was extant and at the time of trial it had been repealed.
However, Section 1 (4) of TADA entailed that the Act's expiry shall
not affect the previous operation of, or anything duly done or
suffered under, this Act. So all the accused had to bear the rigours
of the draconian TADA, Natarajan said. They continued in jail
without bail, had only a limited visiting life, faced hardship, and
suffered mental agony with a death sentence hanging over them, he
said.
|
