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.
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.
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.
http://www.hindu.com/fline/fl1611/16111030.htm
Volume 16 - Issue 11, May. 22 - June 04, 1999 India's National Magazine from the publishers of THE HINDU
