The Centre on Thursday moved the Supreme Court against the Tamil Nadu government's decision to free all seven convicts in the Rajiv Gandhi assassination case.
"The Government is moving a review petition in the Supreme Court on fundamental issues of law arising from the assassination of the late Shri Rajiv Gandhi," read a statement by Prime Minister Manmohan Singh.
"We have also informed the Tamil Nadu Government that their proposed course of action to release the killers of Shri Rajiv Gandhi is not legally tenable and should not be proceeded with," the Prime Minister said.
"The assassination of Shri Rajiv Gandhi was an attack on the soul of India. The release of the killers of a former Prime Minister of India and our great leader, as well as several other innocent Indians, would be contrary to all principles of justice. No government or party should be soft in our fight against terrorism," the PM said, reacting to Jayalalithaa’s statement.
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The apex court is set to hear the Centre's plea questioning the Tamil Nadu government's decision later on Thursday.
The apex court bench headed by Chief Justice P Sathasivam directed the hearing at 12.45pm after solicitor general Mohan Prasaran mentioned the matter, saying that the seven convicts should not be released till the court decides on the petition seeking review of its verdict commuting the death sentence of the three key conspirators to life imprisonment.
Tamil Nadu chief minister J Jayalalithaa said on Wednesday that her government would free seven men who were convicted of plotting the 1991 assassination of Rajiv Gandhi, the former prime minister of India. Jayalalithaa said her government had the authority to free the prisoners. She gave the Centre three days to respond.
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“The assassination of Shri Rajiv Gandhi was an attack on the soul of India… TN government’s proposed course of action to release the killers of Shri Rajiv Gandhi is not legally tenable and should not be proceeded with,” the PM said, reacting to Jayalalithaa’s statement.
At present all convicts – Santhan, Murugan, his wife Nalini, Perarivalan, Robert Pious, Jayakumar and Ravichandran – are serving time in a Tamil Nadu jail.
Nalini's death sentence was commuted to life imprisonment in 2000 after Congress president Sonia Gandhi recommended her case on humanitarian grounds. Co-convict Murugan is her husband and is also serving his sentence in the same prison.
Despite the decision of the Tamil Nadu government to set free seven convicts, their early release from prison seems highly unlikely.
Jayalalithaa announced the release after an emergency cabinet meeting, and promptly gave the Centre a deadline to accept her proposal. This could set her on a collision course with the Union home ministry, which, a senior source said, was in no hurry to comply.
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The Union home ministry has made it clear that the state cannot commute sentence of seven convicts without consulting it and having a separate order from the Centre in this regard.
"We have not received any correspondence from the state in this regard but section 435 of the Criminal Procedure Code (CrPC) is very clear that the any case investigated by a central agency under a central law, in this it was TADA, cannot go ahead for remission or commutation of sentence with consulting the centre. Besides the law says there was a need to a have separate commutation order from the centre as well," said a senior MHA official on the condition of anonymity.
The official added that the ministry was not in a hurry to take a view in the case.
Jayalalithaa said in Chennai that in compliance with the Sec 435 of CrPC, the state would send the cabinet decision to the Centre seeking its nod, but if there was no reply within three days, the state government will release all the seven convicts.
However, senior Supreme Court lawyer KTS Tulsi said: "Section of 435 of the CrPC clearly says that in matters where the executive power of the union extends, there was a need for a separate order on commutation from the central government and it is further says that in absence of a central government order, no order from the state government shall have effect.
The word used here is "shall" which makes it binding. Here is case investigated under a central act TADA by a central agency CBI, so that’s makes clear that in this matter the executive power of the union extends.”
The MHA is also sending a note to ministry of law and justice to make its position clear in the case.
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All the convicts were members of the Liberation Tigers of Tamil Eelam (LTTE), a Sri Lankan-based separatist movement, which was wiped out by Sri Lankan forces in 2009.
They had denied knowing anything about the plot to kill Gandhi as he was campaigning in May 1991 for a return to the prime ministerial office.
He was killed along with 17 others, including the female suicide assassin, as she greeted him with a garland of sandalwood beads and a bomb strapped to her chest during a rally in Sriperumbedur in Tamil Nadu.