The usual place for the standard disavowal, “Views are personal,” is in italics at the end of the column. In this case, I am putting my disavowal upfront in the opening paragraph, because what I want to say regarding retired Justice KT Thomas’ letter to Smt Sonia Gandhi of October 18 is entirely personal.
It was my first election. I was waiting for Rajiv Gandhi to arrive in my constituency at 9:20am on May 22, 1991. At a little past midnight, I heard the horrifying news that he had been assassinated at 10:20pm. I was never to see him again.
The law took its course. Investigations into the assassination were undertaken over several years by TN top cop DR Kartikeyan and his team; tabled before the duly constituted courts; and followed up through the judicial system to its very summit: The Supreme Court of India.
The Supreme Court set up a three-member bench headed by Justice Thomas to finally dispose of the appeals. In February 2014, 23 years after they were first arrested, the death sentences awarded to several of the accused were commuted to imprisonment for life.
Not how justice works
The Tamil Nadu government sought the immediate release of these accused in view of the long period they had already spent in prison. The central government -- then on the verge of an election it was going to lose -- did not agree.
Nor has the subsequent central government agreed. The Supreme Court is seized of the matter. It is pending at the highest level of India’s judiciary.
One would have expected a former justice of the Honourable Supreme Court to await the decision of the same court on whether or not to order the release of those sentenced to imprisonment for life, as demanded by the state government.
Instead, Justice Thomas has written to Rajiv Gandhi’s still and forever grieving widow, asking her and her children to inform the president that they, for their part, also desire the release of these persons who, the courts have decided, did have a crucial role to play in assassinating her husband and their father.
He has referred to the release of Gopal Godse, the brother of Mahatma Gandhi’s assassin, Nathuram Godse, by way of a precedent that might be followed.
On the other hand, Justice Thomas says that it is in his capacity “as the judge who passed this judgement” that he has addressed “this letter to you (Sonia Gandhi) so that you can show magnanimity in the matter.”
I am no jurist and I have little knowledge of jurisprudence, but, as an ordinary citizen of this land, I have been brought up to believe that judicial proceedings in any criminal case are instituted and prosecuted by the State and not by the affected individual(s).
Surely it follows that any judge, especially a Supreme Court justice in the final seat of authority, should be quizzing all concerned on all his concerns and clarifying all doubts in his mind before making his determination, and the injunctions of the law, and within the ambit of the institutions of justice.
Justice Thomas and his fellow-judges were charged with that duty. Both his colleagues disagreed with his conclusions. Therefore, the majority carried the day.
So, rather than seeking the intervention of the affected family -- who have played no part in the investigative or judicial processes for the entire quarter century that has passed since they were given the life-long sentence of grieving their irreparable loss -- should Justice Thomas not be taking his grievances elsewhere?
High profile
Had Justice (retd) Thomas written to the current Chief Justice of India regarding the “serious flaws” he has now perceived in the investigation, that would have been understandable -- surely the highest judicial authority must have its own institutional procedures for rectifying flaws that might emerge after judgement has been passed.
In the instant case, however, the key “serious flaw” detected by former Justice Thomas, after the judgement was passed, is that Kartikeyan and his team failed to trace the origin of Rs 40lakh found in the possession of the accused. Justice Thomas believes that this “huge sum of money” (“huge” in 1991 terms) came from Chandraswami.
Very possibly. He was an extremely dodgy character. He was hauled before the Jain Commission that interrogated him over several days.
Why should persons not involved in either the investigative or judicial processes (such as the Gandhi family) be asked to ‘show magnanimity in the situation?’
The commission’s reports were published long before the three-member bench of the Supreme Court was constituted, with Justice Thomas presiding.
He and his colleagues could have taken note of the evidence and ordered additional investigation into that potent angle before rendering judgement.
They did not. And even if they had, how does Chandraswami’s guilt or involvement affect the final judgement on Perarivalan, Nalini, and others whose death sentence at the trial court stage has been commuted to imprisonment for life at a higher level of the judicial process?
The moot question is: Why should persons not involved in either the investigative or judicial processes (such as the Gandhi family) be asked to “show magnanimity in the situation?” What have they to do with the Thomas’ bench’s judgements?
In an interview, Justice Thomas asks the rhetorical question: “If it was not a high-profile case, what would have been the outcome?” And answers his own question with an astonishing disclaimer, “I don’t have answers.”
Then why did he ask the question? Was it not to suggest that because of this “high profile,” the sentences handed down were a travesty of justice?
Equal before the law
Frankly, I am both shocked and alarmed.
Even if media and public attention were much higher than usual because the assassinated person was a past and potentially future prime minister, surely all should be “equal before the law” for judges and justices of the Supreme Court?
If Justice Thomas is suggesting that he and his colleagues allowed extraneous considerations to influence their final judgement, that is to call into question the integrity of both the judicial institutions and their processes.
As the presiding judge, Justice Thomas lets the unwashed masses have a peep into how Supreme Court judgements are written. He says he was “upset over these serious flaws” (in the CBI investigation) and “shared my concerns with the two others on the bench.” While he himself was intending to deliver a minority judgement, the two others were drafting their joint majority judgement.
According to Justice Thomas, they mutually agreed that there should be “no criticism or kudos for CBI” in their respective judgements.
The gravamen of his present complaint is that the majority judgement “praised CBI officer Kartikeyan wholeheartedly.”
So, what is Justice Thomas driving at? Revealing internal squabbles in the Supreme Court? Indicting Kartikeyan? Ordering an investigation into Chandraswami’s shenanigans? (Is this even possible after Chandraswami’s death in May this year?)
Or just transferring the burden on his conscience to the shoulders of others just because they are “high profile”?
The Congress-led UPA government demitted office in May 2014, more than three and a half years ago. The currently serving rashtrapati-ji is the nominee of the present BJP-led NDA government.
Justice Thomas might perhaps have been within his rights had he addressed his concerns to the prime minister or the president. But to drag in the bereaved family of that young and promising man who was brutally blown up when he was not quite 47 years of age, is, I submit, Your Honour, disgraceful.
They are a magnanimous and compassionate family, irrespective of whether or not they choose to respond to the letter.
I rest my case, Your Honour.
Mani Shankar Aiyar is former Congress MP, Lok Sabha and Rajya Sabha. He was closely associated with Rajiv Gandhi as his Joint Secretary in PMO. This article first appeared on ndtv.com. Reprinted by special arrangement.
