Justice Thomas on corruption in India
In the previous chapter [see, The Pirabhakaran Phenomenon – part 28], I had brought to attention of the readers, the three major problems, viz. politicization, corruption and system overload, which has been eroding the worth of Indian judiciary. I also noted that while the problem of system overload was visibly evident from the time taken for completion of the Rajiv Gandhi assassination trial, the problems of politicization of judiciary and corruption cannot be understated. Thus, it is pertinent to cite some recent observations made by one of the three Supreme Court Judges, Justice K.T.Thomas (who heard the appeal on Rajiv assassination trial), on the intermarriage of politics and corruption in current India.
On April 1, 2001, Justice Thomas delivered the second D.P.Kohli Memorial Lecture in front of the law enforcement officials (Central Bureau of Intelligence) in New Delhi. The title of Justice Thomas’s lecture was, Anatomy and Epidemic of Corruption. While introducing the speaker, the director of CBI, Dr.R.K.Raghavan has noted that “One cannot dispute the appropriateness of the theme chosen for the present times… Born in Kottayam, Kerala, Justice Shri Thomas had his early education in his home town and graduated from St.Alberts College, Cochin. The Madras Law College, which has many brilliant jurists as its alumni, has one in Justice Thomas also…”
Justice Thomas had stated in his lecture,
“…The only solace I had was when I read a news-item that a society called Transparency International conducted a study of corruption level in various countries of the world. They found India as the 10th highest corrupt country in the world. Why I felt it as a solace is, because there are nine other countries in the world, which are more corrupt than India. I thought then about the lamentable situation of those other countries because I myself was lamenting about my own country’s pitiable position…
Politics in India means a very influential instrument because politics can make and unmake Governments. In our constitutional scheme Government is very powerful and it has the exchequer at its command as well authority to create sources for augmenting the funds for the exchequer. So power brokers could also become financially powerful. All will agree that such assets are the repository of many corruptly acquired money. There is no legal provision now to deal with such power brokers…”[Source: India’s Central Bureau of Intelligence website, accessed on Nov.5, 2001]
These general observations have pregnant meaning, and it is anybody’s guess that how the Rajiv Gandhi assassination trial itself was influenced by the politicization of judiciary and corruption problems among the law enforcement personnel, as pointed out by Justice Thomas. While it is difficult to make accusing fingers directly at those who were involved in every phase of the Rajiv assassination trial, circumstantially one cannot infer that politicization and corruption of law enforcement and Intelligence personnel in India are non-existent problems. Otherwise, Justice Thomas wouldn’t have chosen such an appropriate theme as his lecture!
Towards the latter-half of his lecture, Justice Thomas had stated an anecdote on why Mahatma Gandhi made his last fasting, after India attained independence, in November 1947, much against the wishes of his protégés, who had become politically-minded, like Nehru, Patel and Gopalaswamy Iyengar. This was on the necessity of paying 52 crores of rupees immediately to the newly formed state Pakistan as ‘owelty’. In Justice Thomas’s words, “Nehru told him [Gandhi] that we have two years’ time to pay that amount but Gandhiji made his reasoning for immediate payment on the ground that he had no hope that India would pay the amount after his death.” Then, Justice Thomas ended his lecture with a sober note,
“When this country of Mahatma Gandhi was selected, as world’s 10th most corrupt nation the only comfort which we can have is that the Mahatma is not alive to shed tears. But he must be looking down from that celestial terrain and lamenting over the pathetic level to which his country has plummeted.” [ibid]
Now, to Justice Thomas’s verdict on the appeal of Rajiv assassination trial.
Verdict of Justice Thomas
The verdict of Justice Thomas in the Rajiv assassination trial appeal was 69-pages long [taken as a print-out of the verdict from India’s Central Bureau of Intelligence website]. In length, it is in the medium range, between the verdicts of Justice D.P.Wadhwa (201 pages) and Justice Quadri (25 pages). He had summarized the ‘prosecution case’ as follows:
“A criminal conspiracy was hatched and developed by the hardcore LTTE cadre which spread over a long period of 6 years commencing from July 6, 1987 and stretching over till May 1992. The main objects of the conspiracy were: (1) to carry out acts of terrorism and disruptive activities in Tamil Nadu and other places in India during the course of which to assassinate Rajiv Gandhi and others, (2) to cause disappearance of evidence thereof, (3) to harbour all the conspirators living in India and (4) to escape from being apprehended and to screen all those who were involved in the conspiracy from legal consequences.”[p.5 of his verdict]
On Pirabhakaran’s status in the assassination trial Justice Thomas had stated,
“On completion of the investigation the CBI laid charge-sheet against all the 26 appellants besides Veluppillai Piribhakaran (the Supremo of LTTE), Pottu Omman (the Chief of intelligence wing of LTTE) and Akila (Deputy Chief of intelligence) for various offences including the main offence under Section 302 read with Section 120-B and Sections 3 & 4 of the TADA…
All steps taken to apprehend three of the main accused (1) Veluppillai Piribhakaran (2) Pottu Omman and (3) Akila did not succeed and hence they were proclaimed as absconding offenders…”[p.9 of his verdict]
What is Terrorism, according to TADA of India?
Though the following extract is legalese and somewhat lengthy, I wish to reproduce it for reasons of continuing current interest on ‘what is terrorism’. As it is seen in Indian law under TADA, according to Justice Thomas,
“‘Terrorist act’ is defined in Section 2(1) of the TADA, by giving ‘the meaning assigned to it in sub-section (1) of Section 3’ and the expression ‘terrorist’ is mandated to be construed accordingly. It is therefore necessary to look at Section 3(1) more closely. We may extract the first three sub-sections of Section 3:
‘(1) Whoever with intent 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 thing 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 or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person or threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.
(2) Whoever commits a terrorist act, shall,
(i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall be liable to fine;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.”
A reading of the first sub-section shows that the person who does any act by using any of the substances enumerated in the sub-section in any such manner as are specified in the sub-section, cannot be said to commit a terrorist act unless the act is done ‘with intent’ to do any of the four things: (1) to overawe the Government as by law established; or (2) to strike terror in people or any section of the people; or (3) to alienate any section of the people; or (4) to adversely affect the harmony amongst different sections of the people.
When the law requires that the act should have been done ‘with intent’ to cause any of the above four effects such requirement would be satisfied only if the dominant intention of the doer is to cause the aforesaid effect. It is not enough that the act resulted in any of the four consequences.” [pp. 10-11 Justice Thomas’s verdict]
As an aside, one wonders whether Rajiv Gandhi himself could have been arraigned under the TADA’s subsections 2 and 3 of Section 3, for acts committed during his prime ministership, not only in the Eelam territory but also even within India. Though he wouldn’t have personally committed a ‘terrorist act’ in public, certainly documental proofs exist that he had advocated, abetted, advised, and knowingly facilitated the commission of a terrorist act or any act preparatory to a terrorist act, as described under subsection 3. Or does holding an elected position as the prime minister offers ‘immunity’ from such ‘terrorist acts’ for which ordinary citizens holding no elected positions can be punished?
Verdict on conviction falling within the charge Under Section 3 of TADA
I reproduce in full (nearly two pages long), Justice Thomas’s verdict on conviction falling within the charge under Section 3 of TADA. This excerpt is relevant since it includes details about Pirabhakaran’s views related to LTTE’s relationship with India.
According to Justice Thomas,
“Learned Additional Solicitor General endeavoured to show that the intention of the conspirators was to overawe the Government of India. His contention was that assassination of Rajiv Gandhi was a follow up action for restraining the Government from proceeding with the implementation of India-Sri Lanka Accord. In other words, the focus of the conspirators was the Government of India and Rajiv Gandhi was targeted to deter that focal point, according to learned Additional Solicitor General. This contention can be examined by a reference to the evidence in this case.
It is true, LTTE leaders were bitterly critical of ‘India-Sri Lanka Accord’ which was signed on 22-7-1987 [i.e, July 22, 1987. Note: This is an error. The Accord was signed between Rajiv Gandhi and J.R.Jayewardene on July 29, 1987.]. Any one criticized the policy of a Government could not be dubbed as a terrorist unless he had done any of the acts enumerated with the object of deterring the Government from doing anything or to refrain from doing anything.
Veluppillai Piribhakaran addressed a meeting on 4-8-1987 [i.e, Aug.4, 1987], the text of the speech was published which is marked in this case as Ext.354. In the said speech he used strong language to criticize ‘India-Sri Lanka accord’ and the manner in which it was made. But no word of hatred was expressed towards the Government of India though he aired his opposition towards Sri Lankan Government, which he described as ‘Sinhala racist government’. He also spoke bitterly against the Sri Lankan Tamil leaders who supported the Accord. About the Indian Government and its Prime Minister the LTTE supreme said the following:
‘The Indian Prime Minister offered me certain assurances. He offered a guarantee for the safety and protection of our people. I do have faith in the straightforwardness of the Indian Prime Minister and I do have faith in his assurances. We do believe that India will not allow the racist Sri Lankan State to take once again to the road of genocide against the Tamils. It is only out of this faith that we decided to hand over our weapons to the Indian peace keeping force.’
It must be remembered that political changes which occurred in India thereafter had brought a new Government under the leadership of V.P.Singh as Prime Minister in 1989. The IPKF inducted into Sri Lanka was gradually withdrawn in a phased manner, which process was commenced during the Prime Ministership of Rajiv Gandhi himself and continued during the Prime Ministership of V.P.Singh. The attitude of LTTE towards Government of India, during the aforesaid period, can be seen from what their own official publication ‘Voice of Tigers’ had declared in its editorial column in the issue of the said journal dated 19-1-1990 (which is marked as Ext.362). The editorial reads as follows:
‘In the meantime, the defeat of Rajiv Congress Party and the assumption of power of the National Front alliance under Vishwanath Pratap Singh has given rise to a sense of relief and hope to the people of Tamil Eelam. The LTTE has already indicated to the new Indian Government its desire to improve and consolidate friendly ties with India. The new Indian leadership responded positively according to Mr.Karunanidhi, the Tamil Nadu Chief Minister, the role and responsibility of mediating with the Tamil Tigers. The LTTE representatives who had four rounds of talks with the Tamil Nadu Chief Minister in Madras, are firmly convinced that the Tamil Nadu Government and the new Indian administration are favourably disposed to them and the V.P.Singh’s government will act in the interests of the Tamil speaking people by creating appropriate conditions for the LTTE to come to political power in the North-Eastern Province.’
The above editorial is a strong piece of material showing that LTTE till then did not contemplate any action to overawe the Government of India. Of course the top layer of LTTE did not conceal their ire against Rajiv Gandhi who was then out of power.
In this context it is important to point out what Veluppillai Piribhakaran, who went underground in Sri Lanka and resurfaced on 1-4-1990 [i.e, April 1, 1990] after a period of 32 months of disappearance had said. (The news about his re-emergence was published in the newspaper – a copy of which has been marked as Ext.363). The LTTE supreme had told the newsmen then as follows:
‘We are not against India or the Indian people but against the former leadership in India who is against the Tamil liberation struggle and the LTTE.’
Nothing else is proved in the case either from the utterances of the top brass LTTE or from any writings edited by them that anyone of them wanted to strike fear in the Government either of Centre or of any State.
From the aforesaid circumstances it is difficult for us 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. The mere fact that their action resulted in the killing of 18 persons which would have struck great terror in the people of India has been projected as evidence that they intended to strike terror in people. We have no doubt that the aftermath of the carnage at Sriperumbudur had bubbled up waves of shock and terror throughout India. But there is absolutely no evidence that any one of the conspirators ever desired the death of any Indian other than Rajiv Gandhi. Among the series of confessions made by a record number of accused in any single case, as in this case, not even one of them has stated that anybody had the desire or intention to murder one more person along with Rajiv Gadhi except perhaps the murderer herself. Of course they should have anticipated that in such a dastardly action more lives would be vulnerable to peril. But that is a different matter and we cannot attribute an intention of the conspirators to kill anyone other than Rajiv Gandhi and the contemporaneous destruction of the killer also.
Alternatively, even if Sivarasan and the top brass of LTTE knew that there was likelihood of more casualties that cannot be equated to a situation that they did it with an intention to strike terror in any section of the people.
In view of the paucity of materials to prove that the conspirators intended to overawe the Government of India or to strike terror in the people of India we are unable to sustain the conviction of offences under Section 3 of TADA.”[pp.13-15 of Justice Thomas’s verdict]
Verdict on conviction falling within the charge Under Section 4(1) of TADA
Justice Thomas’s verdict on conviction falling within the charge under Section 4(1) of TADA was as follows:
“The next endeavour is to see whether the conspirators did any ‘disruptive activities’ so as to be caught in the dragnet of Section 4(1) of TADA. The subsection reads: ‘Whoever commits or conspires or attempts to commit or abets, advocates, advises, or knowingly facilitates the commission of, any disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.’… [p. 15 of the verdict]
Under this section, Justice Thomas establishes that Rajiv Gandhi, at the time of his assassination, was not a public servant.
“The killing of a public servant or killing of any other person bound by oath would be an offence under the Indian Penal Code. But it must be noted that such killing, as such, is not a disruptive activity. Certain type of actions which preceded such killing alone is regarded as a disruptive activity through the legal fiction created by sub-section (3). Such actions include advocating, advising, suggesting, inciting, predicting, prophesying, pronouncing or prompting the killing of such persons. In other words, all the preceding actions directed positively towards killing of such persons would amount to disruptive activity, but not the final result namely, the act of killing of such person.
If there is any evidence, in this case, to show that any such preceding act was perpetrated by any of the appellants towards killing of any police officer who was killed at the place of occurrence it would, no doubt, amount to disruptive activity. But there is no such evidence that any such activity was done for the purpose of killing any police personnel.
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’. Even the Lok Sabha stood dissolved months prior to this incident and hence it cannot be found that he was under an oath as a Member of Parliament. The inevitable fall out 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 [pp.16-17 of the verdict]
Then, in dismissing the conviction of appellants under Section 3 or 4 of TADA, Justice Thomas had inferred,
“What remains to be considered for Section 4(1) of TADA is whether any disruptive activity falling within the ambit of the definition in sub-section (2) has been established. The attempt which prosecution has made in that regard, is to show that the conspirators intended to disrupt the sovereignty of India. To support the said contention, our attention was drawn to the confessional statement of A-3 (Murugan), A-18 (Arivu) and the photographs proved as M.Os. 256 to 259 [Note: M.O is the abbreviation for Material Objects submitted by the prosecution], which were seized from the bag of A-3 (Murugan). The said items of evidence show that photos of Fort St. George, Madras (which houses the Government Secretariat of Tamil Nadu and the Legislative Assembly and Legislative Council), Police Headquarters, Central Jail within Vellore Fort etc. had been taken and dispatched to the LTTE top brass of Sri Lanka.
It is too much a strain to enter a finding, on such evidence, that the above activities were unmistakably aimed at disrupting the sovereignty of India. The sketch of Vellore Fort (which houses the Central Jail) was drawn up, most probably, for planning some operation to rescue the prisoners (belonging to LTTE who have been interned therein). That of course would be an offence but not an activity which falls within the purview of Section 4 of TADA.
We are, therefore, unable to sustain the conviction of appellants for offences under Section 3 or 4 of TADA.”[p.17 of the verdict]
Concessions made and disputed by the Defence Counsel
Justice Thomas also has summarized clearly the concessions made and disputed by the Defence Counsel in the assassination trial. In his words,
“We may put on record the following concessions made by the learned counsel for all the appellants at the Bar:
(I) Prosecution has successfully established that Rajiv Gandhi was assassinated at 10.19 PM on 21-5-1991 at Sriperumbudur by a girl named Thanu who became a human bomb and got herself exploded in the same event; and that altogether 18 persons, including the above two, died in the said explosion.
(II) There is overwhelming evidence to show that assassination of Rajiv Gandhi was resulted from a conspiracy to finish him.
(III) It is also established by the prosecution beyond doubt that Sivarasan @ Raghuvaran who was a top brass of LTTE was one of the kingpins of the said conspiracy.
We may also record at this stage that the two points which are seriously disputed by the learned counsel for the appellants are the following: (1) Assassination of Rajiv Gandhi was not the only focal point of the conspiracy. (2) Appellants were participants in the conspiracy.
In other words, the defence contended that the conspiracy was made only to assassinate Rajiv Gandhi and that none of the appellants had participated in the conspiracy.”[pp.17-18 of the verdict]
Upto this point, Justice Thomas had meaningfully restricted his observations within the judicial terms of reference, based on submitted evidence by the prosecution. Then, in page 24 of his verdict, he had inserted political cant in one sentence by proclaiming, “There is not even a speck of doubt in our mind that the criminal conspiracy to murder Rajiv Gandhi was hatched by at least 4 persons comprising of Veluppillai Piribhakaran, Pottu Omman, Sivarasan and Akila”. However, he has refrained from providing any supporting evidence for such a blanket statement. Rather than substantiating his inference with solid proof, he had skirted the issue (by engaging in verbal gymnastics) with the following observation:
“We have no doubt from the circumstantial evidence in this case, that Thanu, the girl who transformed into a human bomb, and her friend Suba were unflinchingly committed commandos of LTTE and they were also brought into the conspiracy ring by the top brass of LTTE. Circumstances proved in this case regarding the aforesaid core points are too many. However, we are spared from the task of enumerating all such circumstances as learned counsel for the accused have fairly conceded about the sufficiency of circumstances which have been proved in this case to establish the aforesaid points.” [p. 24 of the verdict]
In my opinion, the defence counsel had conceded that Sivarasan was “one of the kingpins of the said conspiracy”. But Justice Thomas has not revealed in his verdict, the presence of any pre-assassination ‘document’ (in whatever form) which links Sivarasan or Dhanu to Pirabhakaran.
Justice Thomas’s categorization of ‘conspirators’
“The conspirators in the Rajiv Gandhi assassination can be vivisected into four broad categories.
First, those who formed the hardcore nucleus which took the decision to assassinate Rajiv Gandhi.
Second, those who induced others to join the ring and played active as well as supervisory roles in the conspiracy.
Third, those who joined the conspiracy by inducement whether through indoctrination or otherwise.
Fourth, those among the conspirators who participated in the actual commission of murder.”[p.68 of the verdict]
Then, Justice Thomas wrote the vital three sentences, which have been highlighted and twisted in the mass media to portray Pirabhakaran as the ‘convicted criminal’.
First, I provide the words of Justice Thomas, and then I analyze the meaning of these three sentences.
“Persons who fall within the first category cannot normally escape from capital punishment if their case ends in conviction. Veluppillai Piribhakaran, Pottu Omman, Akila, Sivarasan and Trichy Santhan have been described as persons falling within the radius of the first category. As they were not tried for the offences so far we refrain from observing anything concerning them in the sphere of sentencing exercise.”[p.68 of Justice Thomas’s verdict]
My observations on these three sentences
The first sentence is a conditional statement, ending in “if their case ends in conviction”. The Colombo hack whom I cited in the front note to the previous chapter [see, The Pirabhakaran Phenomenon – part 28] had twisted this conditional statement into a fact.
In the second sentence, Justice Thomas had stated, that Pirabhakaran, Pottu Amman, Akila, Sivarasan and Trichy Santhan “have been described as persons falling within the radius of the first category”. Who described? – not Justice Thomas, but the prosecution team of SIT.
The third sentence is also interesting in that Justice Thomas confirms that Pirabhakaran, Pottu Amman and Akila (‘they’) “were not tried for the offences so far”. Then, he also continues the sentence with the assertion, “we refrain from observing anything concerning them in the sphere of sentencing exercise.”
While stating in page 68 [the penultimate page of his verdict] that Pirabhakaran, Pottu Amman and Akila “were not tried for the offenses”, Justice Thomas [willingly or negligently] had offered political cant in page 24 of his verdict proclaiming, “There is not even a speck of doubt in our mind that the criminal conspiracy to murder Rajiv Gandhi was hatched by at least 4 persons comprising of Veluppillai Piribhakaran, Pottu Omman, Sivarasan and Akila”. I find this perplexing, unless one allows it as a ‘political piece of meat’ thrown in to satisfy the lapping instinct of Indian journalists and commentators. Also, the recurrent use of Royal ‘we’ (and associated ‘our’) need to be noted, and I would state that among the three judges who heard the supreme court appeal, Justice D.P.Wadhwa and Justice S.S.M.Quadri did not offer any comment which is in concordance with that of Justice Thomas relating to Pirabhakaran’s role in the conspiracy.
Additional observations of Justice Thomas
I provide below a list of additional observations made by Justice Thomas in his verdict.
(1) “It must be remembered that LTTE had several activities, even apart from murdering Rajiv Gandhi. So merely because a person is shown to be an active worker of LTTE that by itself would not catapult him into the orbit of the conspiracy mesh in order to murder Rajiv Gandhi.”[p. 37 of the verdict]
(2) “A-8 [i.e, 8th accused Athirai] is a girl hailing from Sri Lanka. She was in her teens during the days of conspiracy. Two of her sisters are now in Switzerland living with their husbands. A-8 (Athirai) had a love affair with a boy named Anand, but he died in a raid conducted by IPKF during 1989. She was recruited in the LTTE at the age of 16 and she was given a training in shooting. It was from her confessional statement [Exhibit for Prosecution – 97] that we got the idea of placement of Thanu and Suba in the LTTE ranking. The former was a member of ‘Black Women Tiger’ and the latter was a member of the Army Branch of LTTE.” [p. 39 of the verdict]
(3) “Except A-1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arivu) all the remaining appellants shall be set at liberty forthwith.” [p. 65 of the verdict]
(4) “We can hold with certainty that A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) belonged to the second category [of the conspirators, as mentioned above] even if they slip out of the first. They were not merely carrying out the orders of the first category personnel but they made others to work according to their directions in order to achieve the target. The role played by them was prominently direct and active. They were in the leadership layer among the conspirators. We are not able to find out anything extenuating as for the said three persons in their activities for implementation of the decisions of the cabal. We therefore confirm the extreme penalty imposed by the trial court on A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) for the offence under Section 302 read with Section 120-B of the IPC.” [p. 68 of the verdict]
(5) “A-1 (Nalini) belongs to the fourth category [of the conspirators, as mentioned above]…on an evaluation of the plus and minus, pros and cons we persuade ourselves to save A-1 (Nalini) from gallows. Hence the sentence passed on her is altered to one of imprisonment for life.”[pp. 68-69 of the verdict]
(6) “What remains is the case of A-9 (Robert Payas), A-10 (Jayakumar) and A-16 (Ravichandran). They do not belong to the first or even to the second category [of conspirators, as mentioned above]. They were LTTE followers and they just obeyed the commands of leaders like Sivarasan who had the capacity to dominate over them. We are inclined to alter their sentence from death penalty to imprisonment for life. We order so.” [p. 69 of the verdict]
In the next chapter, I will analyze the lengthy verdict delivered by Justic D.P.Wadhwa (Continued).