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Anup Surendranath and Adrija Ghosh write: In a heavily flawed justice system, Perarivalan’s release is a rare success

Others like him — who have fallen through the cracks of our criminal justice system, which fails to learn from its mistakes — might not be so lucky

The Supreme Court’s May 18 order releasing A G Perarivalan, one of the convicts in the Rajiv Gandhi assassination case, is the culmination of a long-drawn-out battle for freedom spanning over 31 years. Perarivalan’s agonising wait may have ended, but his struggle serves as a grim reminder of the several failures of our criminal justice system.

The fact that it took over 31 years for Perarivalan’s release despite strong concerns of wrongful prosecution and wrongful conviction ought to worry us. Perarivalan’s case forces us to reckon with the tyrannical legacy of terror laws and the broader crisis that plagues criminal justice administration. The case against Perarivalan, charged under the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Indian Penal Code (IPC), was that he had participated in the conspiracy to assassinate former Prime Minister Rajiv Gandhi by supplying batteries for the belt bomb allegedly used for the assassination, with the knowledge that the batteries would be put to said use. The main evidence against him was a confession made to this effect to CBI officer, V Thiagarajan. Such confessions to the police, ordinarily inadmissible under the Indian Evidence Act, were admissible under the TADA.

In 2017, 18 years after the Supreme Court upheld Perarivalan’s conviction under IPC provisions, using the confession recorded under TADA (despite the TADA charges having been dropped), Thiagarajan submitted a sworn affidavit before the SC stating that he had omitted the exculpatory part of Perarivalan’s statement, denying knowledge of the use to which the batteries would be put. This reveals the violent reality of our criminal justice system — that statements and evidence are manipulated to secure convictions. It also demonstrates the dangers of conferring extraordinary police powers under the garb of national security legislation. Again, in 2017, Justice K T Thomas, one of the three SC judges who had upheld Perarivalan’s conviction, acknowledged “serious flaws” in the CBI investigation.

For nearly half of his 31 years in prison, Perarivaalan lived under the sentence of death. The SC confirmed the death sentence imposed by the TADA Court in ignorance of the Bachan Singh framework, which requires circumstances relating to both the crime and the criminal to be considered. Justice KT Thomas later expressed doubts as to whether such severe punishment would have been imposed, had it not been such a high-profile case. Nevertheless, in what must be seen as a triumph of the human spirit, Perarivalan’s educational attainments in prison are extraordinary. Life in prison, especially on death row, is one of despair; a reality that we can barely begin to imagine.

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Perarivalan’s death sentence was finally commuted to life imprisonment by the SC in 2014, after almost 16 years on death row, on grounds of an extraordinary and unexplainable delay of 11 years, after which his mercy plea was rejected by the President. In 2015, Perarivalan filed a mercy petition before the Tamil Nadu governor under Article 161 of the Constitution, seeking pardon. For years, there was sustained back and forth between the state government in Tamil Nadu and the Centre on which one of them had the authority to decide Perarivalan’s release. In 2018, the council of ministers of the Tamil Nadu government recommended to the governor that Perarivalan be released in the exercise of constitutional powers of clemency; advice that the governor was constitutionally obligated to follow. Despite this, the governor took no decision on the mercy petition and finally in 2021, forwarded the same to the President for his decision under Article 72. Holding that this was done without constitutional backing, the SC invoked its extraordinary powers under Article 142, releasing Perarivalan and deeming his sentence as having been served.

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The manner in which Perarivalan and his mother Arputhammal ensured that their fight stayed alive for over three decades demonstrates the enormous effort required to correct an injustice in our system. Their efforts ensured that the case received national attention, that Perarivalan’s cause was backed by political parties in Tamil Nadu with strong support from the bar, civil society, and retired judges — all of these aspects are stories of exceptions rather than the norm. Perarivalan might have rightfully won his freedom back, but the same fate does not await others like him.

The passage of time has allowed us to look at the questions of injustice in this case in a far more meaningful way. It now is a question of whether we as a society have the courage to acknowledge what was inflicted in our name.

The writers are with Project 39A at National Law University, Delhi

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