A G Perarivalan, one of the seven convicted in Rajiv Gandhi killing. (File Photo) A G Perarivalan, one of the seven convicted in Rajiv Gandhi killing. (File Photo)

The judge who headed the three-member Supreme Court bench that confirmed the punishment to the convicts in the Rajiv Gandhi assassination case has written a letter to the former prime minister’s wife and Congress president Sonia Gandhi, requesting her to “show magnanimity” and convey her willingness for the remission of sentences of those who have been in jail since 1991.

In the letter dated October 18, Justice (retd) K T Thomas pointed out that a decision to grant remission by the Tamil Nadu government in 2014 was opposed by the Centre — the matter is pending before the Supreme Court.

“Perhaps the Union government would agree if you and Rahulji (if possible Priyankaji also) would write to the President of India conveying your willingness to grant remission to these persons who have already spent the longest period of their life in prison. It appears to me as a matter of human consideration which you alone can help. As the judge who passed the judgment against these persons I now feel that I should address this letter to you so that you can show magnanimity in the situation,” the letter stated.

Speaking to The Indian Express on Wednesday, Justice Thomas confirmed the contents of the letter and said that he was seeking “compassion” for the convicts. He said there were “serious flaws” in the CBI’s investigation in case, particularly related to the seizure of Rs 40 lakh in cash from the convicts, which led him to believe that the probe exposed “an unpardonable flaw” in the “Indian criminal justice system”.

In the letter, Justice Thomas referred to the central government’s decision in 1964 to set free Gopal Godse, brother of main accused Nathuram Godse, who was charged with conspiracy in the Mahatma Gandhi assassination case after 14 years of imprisonment.

Justice Thomas ended his letter with these lines: “I also feel that God Almighty will only be pleased by showing the magnanimity to those prisoners. I may be excused if I have done anything wrong in requesting you as above.”

On May 11, 1999, the bench headed by Justice Thomas, and including justices D P Wadhwa and Syed Shah Mohammed Quadri, confirmed the conviction of seven persons in the case — four were sentenced to death, including Murugan alias Sriharan and his wife S Nalini, Santhan and A G Perarivalan, and three to imprisonment for life.

In the case of Nalini, the only accused at the site of the blast that killed Rajiv Gandhi in Sriperumbudur on May 21, 1991, Justice Thomas gave a dissenting, but minority, verdict awarding imprisonment for life. In 2000, Nalini’s death sentence was commuted to life term.

In 2008, Priyanka Gandhi met Nalini at the Vellore jail and later described the visit as her “way of coming to peace with the violence and loss that I have experienced”. In 2014, the Supreme Court commuted the death sentence of the three other convicts to imprisonment for life.

Speaking to The Indian Express, Justice Thomas said he has often wondered whether the bench handed down a “severe punishment” because the convicts were linked to a high-profile assassination. “If it was not a high-profile case, what would have been the outcome? I don’t have answers,” he said.

Describing his decision to seek Sonia Gandhi’s intervention in favour of the convicts as “tough”, Justice Thomas said, “They are considered as the killers of Rajiv Gandhi. But do not mistake me, I am requesting her to have compassion at this stage,” he said.

”We had such values under Panditji (Jawaharlal Nehru), too, in the release of Gopal Godse after 14 years of life imprisonment inspite of conspiracy charges he faced in the assassination of Mahatma Gandhi,” Justice Thomas said. Gopal Godse was released in October 1964, five months after Nehru’s death, before being re-arrested for another year.

Referring to the case of Perarivalan, Justice Thomas said it brought to fore another aspect of the assassination case that generated intense debate over using the confession of one accused against another.

”Under the conventional Evidence Act, a confession can be used only as a corroborative piece of evidence. But the two other judges on my bench did not agree, they insisted that we should use it as substantive evidence. To prevent the laying of such a wrong law, I called them to my home where we had several rounds of debates in which I tried to convince them. But the majority view in the judgment considered the confession statement as substantive evidence as it was under TADA [Terrorist and Disruptive Activities (Prevention) Act]. Later, many senior jurists called me to say that the majority order laid a wrong law in the case,” he said.

In 2013, Justice Thomas had raised the question of double jeopardy in the case and said that hanging three convicts after 24 years — at the time — would be unconstitutional.

Referring to the CBI probe in the case, Justice Thomas said he was “agitated” during the trial over “serious flaws” by the Special Investigation Team, especially when the agency claimed ignorance about the source of Rs 40 lakh seized from the accused.

“The main accused were all from Sri Lanka. I told the then solicitor general Altaf Ahmed that I can understand the seizure of a few Sri Lankan currency but Rs 40 lakh was such a huge amount in that period. That means there were financially powerful forces behind those who were arrested. I asked him whether he investigated the origin of that cash. After a brief chat with the investigation chief D R Karthikeyan, he sought time to reply. The next day, Ahmed told the court that investigators couldn’t find the source of the cash,” said Justice Thomas.

“I was upset over these serious flaws and shared my concerns with the two others on the bench. They suggested that we shouldn’t criticise the CBI in the final order, considering their efforts. Then I suggested a condition: no criticism or kudos for CBI in the final order. They agreed. After drafting the final orders, we exchanged the drafts for reading. But on the day of the judgment, I was shocked to hear Justice D P Wadhwa’s judgment praising CBI officer Karthikeyan wholeheartedly. That made headlines… sending out a message that the Supreme Court was fully happy with the probe,” he said.

“Since I was the senior judge, he read out his draft only after mine. If I knew about changes he brought in his order, I would have corrected mine, too, to stand by my observations,” said Justice Thomas.

When contacted in Kolkata by The Indian Express over phone, Justice (retd) Wadhwa declined to comment on Justice Thomas’s version.

After his bench’s verdict, which also released 19 other convicts in the case, Justice Thomas said that he read an interview of one of those freed in The Week magazine.

“He claimed that when he told investigators that the Rs 40 lakh was paid by none other than Chandraswami, he was warned by an officer to not talk about the godman… I strongly feel that the failure of the Indian criminal system in probing the role of Chandraswami (who died on May 23, 2017) is an unpardonable flaw of the Indian criminal justice system,” he said.

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