India & the Struggle for Tamil Eelam Rajiv Gandhi Assassination - The Verdict Nadesan Satyendra,
23 October 1999 
"...The assassination of ex Prime Minister Rajiv Gandhi was wrong, because it was wrong to punish without charge and without trial according to law. But, if that was wrong was the procedure adopted to establish the guilt of the accused in the Rajiv Gandhi assassination a fair one? Was Amnesty International right in pointing out that: 'The legislation under which they were tried... contravenes several international standards for fair trial, including the holding of trials in camera and the non-disclosure of the identity of witnesses.'... Procedural law is civilisation's substitute for private vengeance and self-help. 'Lynch law' is no law..." Contents
 The assassination of Rajiv Gandhi was wrong ...
Having said that, it remains necessary to examine Rajiv's conduct in relation to the war that was unleashed in Tamil Eelam on 10 October 1987...
Thileepan's fast and Rajiv Gandhi's decision to send Kumarappa and Pulendran to Colombo...
Yes, it was altogether a 'dastardly business'...
If Rajiv Gandhi had been tried before an International Court of Justice, an opportunity may have been afforded for an informed judgement to be made on the extent of his guilt ...
Kannagi in Cilapathikaram, took the law into her own hands and burnt down Madurai in her search for justice...
Again, the international dimension of the assassination may not be without relevance...
Many Tamils will continue to grapple with (and agonise over) the question of moral laws and ethical ideals in the context of an armed struggle for freedom...
And, now, the sentences of death passed on four of the accused in the Rajiv Gandhi assassination case, compels us to examine these issues yet again - and silence may not be an option...
Were Perarivalan, Murugan, Santhan, and Nalini Bagyanathan convicted after a fair trial or was the trial simply a 'show trial' with a pre ordained ending?...
If the assassination of Rajiv Gandhi was wrong, then it is worse to punish on the basis of a show trial which, in truth, was no trial at all...
The assassination of Rajiv Gandhi was wrong... The assassination of ex Prime Minister Rajiv Gandhi in May 1991 was wrong. It was wrong not because ex Prime Minister Rajiv Gandhi was innocent of responsibility for the war crimes committed by the Indian Peace Keeping Force (IPKF) in Tamil Eelam. The assassination of ex Prime Minister Rajiv Gandhi was wrong, because it was wrong to punish without charge and without a fair trial according to law. Rajiv Gandhi was not a combatant in an armed conflict. At the time of his assassination, he was the leader of a political party campaigning at a general election. And, the IPKF itself had withdrawn from Tamil Eelam by early 1990. India and the Tamil Eelam were not war - at least, not a declared war. Rajiv Gandhi's assassination violated not only the laws of India but also the laws of war which protect civilians.
Having said that, it remains necessary to examine Rajiv's conduct in relation to the war that was unleashed in Tamil Eelam on 10 October 1987... Having said that, it remains necessary to examine the conduct of ex Prime Minister Rajiv Gandhi in relation to the war that was unleashed in Tamil Eelam on 10 October 1987. It was a war whose very purpose had been called in question by those who helped to shape India's foreign policy: "...as an Indian I feel ashamed that under the Indo Sri Lanka agreement, our forces are fighting with Tamils whom they went to protect. Speaking of blaming the Indian soldiers, soldiers are meant to carry out commands, but I do believe that in our own Indian ethics, soldiers are not merely meant to carry out commands because if you look at the history and the mythology and the culture which is Indian...We are supposed to fight only for Dharma. Only if the war is righteous shall you fight it.... I believe that the Indian Government had betrayed its own culture and ethics. For the first time, it has sent out soldiers to fight when there was no cause for us to fight. There was no purpose for us to fight. When I speak to the Indian army officers, whom I know and who have come back after serving in Sri Lanka, they are the most puzzled and most unhappy people because they do not know the cause for which they are fighting. The guilt, therefore, rests entirely on those who sent them to do this dastardly business of fighting in Sri Lanka against our Tamil brothers and sisters..." (India's former Foreign Secretary, A.P.Venkateshwaran, speaking in London in April 1988)
It was a 'dastardly business'. The Indo Sri Lanka Agreement was signed on 29 July 1987. Velupillai Pirabaharan, the leader of the Liberation Tigers of Tamil Eelam (who were recognised as 'combatants' by the Accord and who had emerged as the leaders of the Tamil national struggle) declared at Suthumalai on 4 August 1987: "The set of proposals envisaged in the Indo Sri Lanka Accord for the settlement of the Tamil National question has serious limitations and falls short of fulfilling the aspirations of our people. Hence we pledge to extend our co-operation to the implementation of the Accord only in so far as it upholds the rights of our people. It is unfair and unreasonable for a democratic country like India to demand unconditional support for the Accord at the point of a gun."
The political reality was that the Indo Sri Lanka Agreement was not directed to securing the rights of the Tamil people. Sri Lanka President Jayawardene told a Voice of America correspondent in an interview reported in the Asian Weekly, New Life of 13 November 1987, that the Voice of America had become a 'voice of a problem' between India and Sri Lanka because India feared that VOA transmitting facilities in the island were being used for military purposes. Prime Minister Rajiv Gandhi admitted as much in the Indian Lower House in early November 1987: "The Indo Lankan agreement would also meet some of our important security concerns and ... therefore the Government of India is fully committed to the full implementation of this agreement" (New Life,13 November 1987).
And, the exchange of letters which accompanied the signing the Indo Sri Lanka Agreement ensured that "Trincomalee or any other ports in Sri Lanka will not be made available for military use by any country in a manner prejudicial to India's interests", and that "Sri Lanka's agreement with foreign broadcasting organisations will be reviewed."
Thileepan's fast and Rajiv Gandhi's decision to send Kumarappa and Pulendran to Colombo... On 15 September 1987, the LTTE leader of the political wing in Jaffna, Thileepan, commenced a fast unto death in front of Nallur Murugan Temple to protest against — the failure to effectively implement the promises in the Indo Sri Lanka Accord; — the accelerated state aided Sinhala colonisation in the Eastern Province; — the continued detention of Tamil prisoners under the Prevention of Terrorism Act; — the failure of the Home Guards to surrender their arms; — the failure to close army and police camps situated in Tamil areas; and — the delay in setting up an interim administration for the North and East.
Thileepan died on the 26th of September 1987. Though there was widespread grief, Theelepan's funeral was a peaceful day of mourning and the LTTE moved in decisively to curb any kind of violence. But, then on 3 October 1987, two LTTE leaders, Kumarappa and Pulendran along with 12 others were arrested by the Sri Lankan Navy and held in the Army camp at Pallali in Tamil Eelam. Prime Minister Rajiv Gandhi, mindful perhaps of the importance of the Indo Sri Lanka Accord to India's 'important security concerns', chose to accede to the request of the Sri Lanka government to transfer the arrested LTTE leaders to Colombo. It was a political decision which contravened Article 2.11 of the 1987 Indo Sri Lanka Agreement which article provided: "The President of Sri Lanka will grant a general amnesty to political and other prisoners now held in custody under the prevention of Terrorism Act and other Emergency Laws, and to Combatants, as well as to those persons accused, charged and/or convicted under these Laws."
The LTTE leaders swallowed cyanide and killed themselves, rather than allow themselves to be taken to Colombo in the custody of the Sri Lanka security forces. Many may take the view that Prime Minister Rajiv Gandhi's action resulted not only in the death of Kumarappa and Pulendran, but was also the immediate cause of the eruption of the conflict between the IPKF and the LTTE. Prime Minister Rajiv Gandhi chose to strike an opportunistic alliance with President J.R.Jayawardene's Sri Lanka - an alliance directed to further India's strategic interests. Rajiv Gandhi failed to adopt a balanced approach which recognised that Tamil armed resistance had arisen as a response to decades of systematic oppression by a dominant Sinhala majority. In the event, the election of Ranasinghe Premadasa as the new Sri Lanka President in December 1988, and the defeat of the Indian National Congress (led by Rajiv Gandhi) at the Indian General Elections in November 1989 contributed to a reappraisal by India of its foreign policy approaches and the IPKF withdrew from Sri Lanka in early 1990. Rajiv Gandhi and his advisors, who included Romesh Bhandari, had preferred to secure New Delhi's strategic interests (within the constraints imposed by the international frame) by refusing to accept that the LTTE was a friendly force whose interests were not opposed to that of India in South Asia. "We have no objection whatsoever to India's strategic aspirations ... in South Asia. We always functioned and will continue to function as a friendly force to India. We would have extended our unconditional support to the Indo-Sri Lanka Accord if the Agreement was only confined to Indo-Sri Lanka relations aimed to secure India's geopolitical interests. But the Accord interferes in the Tamil issue, and betrays Tamil interests. It is here that the contradiction of interests between the LTTE and India emerges..." (Tamil National Struggle and Indo Sri Lanka Accord - paper presented by the Political Committee of the LTTE at the World Tamil Conference in London, 30 April 1988)
Yes, it was altogether a 'dastardly business'... Yes, it was altogether a 'dastardly business'. Eduardo Marino's report to International Alert, after a visit to the war zone in November 1987 revealed the horrific nature of the IPKF offensive in Jaffna. (see also Indian Armed Forces). "With its epicentre in Jaffna, an accumulation of political and military events and incidents over the preceding nine-week period erupted into armed hostilities between the Indian Army and the Tamil LTTE on 9th October 1987. Regardless of diplomatic rhetoric political intention or journalistic commentary, as from that day, the Indian Peace-Keeping Force, IPKF, became operationally a war fighting military force and - as time has passed and the situation evolved - also a force of military occupation, at least in the Northern Province. To continue calling it a "peace-keeping" operation is a misnomer. Over a period of about 20 days, the Indian Army's direct attack on LTTE positions, and defence from LTTE attacks, was coupled with the Indian Army's attack and storming of still unevacuated Jaffna - and many villages and settlements throughout the Peninsula - with widespread (insofar as territory), indiscriminate (insofar as targeting) and sustained (insofar as intensity) artillery shelling. Only less widespread, sustained and indiscriminate, there was air-strafing from helicopter as well. It was not "cross-fire" that incidentally killed thousands of civilians. The majority were killed unavoidably inside their houses and huts under shelling, or were shot at random by the roads and on the streets. A large number of people were 'only' wounded - yet, many of them died in the absence of medical care, especially under the 24-hour curfew over a period of about one month, to mid-November. It was a combination of firing and shelling... that made an estimated 175,000 families ( that is, about 500,000 people) refugees into the Jaffna outskirts within days. The situation became grotesquely hopeless for many people in some areas : while the curfew was being rigorously enforced - that is, with an order in place to shoot-to-kill pedestrians - the inhabitants were simultaneously ordered out of their houses into the outskirt concentrations, an absurd operational overlapping inevitably leaving a good number dead."
Derek Brown reporting from Colombo declared in the Guardian on 21 October 1987: 'The Indians have insisted throughout the 11 day offensive that they have used little artillery and no air cover to minimise civilian casualties. That claim was sagging yesterday under a heavy, and remarkably uniform, weight of evidence from refugees and the few scraps of independent confirmation coming out of the Jaffna peninsula. The infantry advance, the student said, was preceded by a systematic artillery barrage. He had heard heavy guns firing daily, and had seen two woman killed by the washing well in the Hindu Ladies College, one of the main refugee camps where thousands have sought shelter from the fighting. 'The people have no food but they are not worried about that. Even if they are starving, they worry only about security. They have no cover from the shelling' he said. He also flatly denied the Indian claim that there had been no air strikes. He had seen helicopters and fixed wing aircraft of the Sri Lankan airforce attacking with bombs and machine guns. The Sri Lankans, indeed, have more or less openly admitted that their aircraft were used last week, but they have insisted that the operations were only an the direct request of the Indians..."
Simon Freeman reported in the Sunday Times on 8 November 1987: "Tens of thousands of refugees are living in appalling conditions in makeshift camps in Jaffna, according to a senior Sri Lanka Red Cross official, despite claims by the government of President Junius Jayawardene and the Indian Army that the town is returning to normal...it is a ghost town. The streets are deserted. Thousands of people are living in temples because they are afraid to go back to their homes. They have no electricity. They need everything - clothes, medicine, even candles and matches. many buildings have been destroyed. I saw three or four dead bodies on the streets ... 20,000 refugees share three or four toilets... It is a similar story in the Tamil eastern coastal provinces... hundreds of buildings in Trincomalee have been destroyed... the countryside is just as ravaged as the towns. He (the Red Cross Official) said that he was describing what he had seen as accurately as possible in the hope that international publicity would help the victims.."
But on 9 November 1987, Rajiv Gandhi continued to insist: "The IPKF were given strict instructions not to use tactics or weapons that could cause major casualties among the civilian population of Jaffna, who were hostages to the LTTE. The Indian Army have carried out these instructions with outstanding discipline and courage, accepting, in the process a high level of sacrifices for protecting the Tamil civilians". (Indian Prime Minister Rajiv Gandhi the Lok Sabha, 9 November 1987)
The war crimes committed by the IPKF in Tamil Eelam have been documented by independent sources. These crimes included reprisal killings of non-combatants, looting of homes, rape, a murderous attack on the Jaffna hospital , and the killing of a number of unarmed and disarmed guerrilla suspects without trial and in breach of the Laws of War. It was an IPKF campaign which led Kanapathipillai Poopathy, a 56 year old Tamil mother to take up residence at Mahmangam Pillayar temple in Batticaloa, on 19 March 1988 and commence a fast unto death, to protest to the world, the injustice of the war waged by the IPKF. Poopathy Amma (as this extraordinary woman has come to be affectionately known to the people of Tamil Eelam) went without food and fluids for thirty days before her death on 19th April 1988. George Fernandez, then an Indian Opposition M.P. (and today India's Defence Minister) was moved to comment in 1989: "When in early August, 1987, I had said that Mr. Rajiv Gandhi's military adventure in Sri Lanka would be India's Viet Nam, I had not anticipated that India's Viet Nam would also have its own My Lai. Of course, I was aware and I had also said repeatedly that soldiers everywhere alike, their training and the rigours of their life, not to speak of the brutalisation caused by war, making them behave in the most inhuman ways when under pressure. That is why when in the early days of India's military action in Sri Lanka, stories of rape and senseless killings by Indian soldiers came to be contradicted by the India government publicists, I joined issue with everyone who came to accept that our soldiers were cast in the mould of boy scouts who went around the fighting fields of Sri Lanka looking out for opportunities to do their day's good deeds, particularly for damsels in distress. Now, in Velvettiturai, the Indian army has enacted its My Lai. London's Daily Telegraph commenting editorially on the barbarism exhibited by the Indian army in Velvettiturai says that, if anything 'this massacre is worse than My Lai. Then American troops simply ran amok. In the Sri Lankan village, the Indians seem to have been more systematic; the victims being forced to lie down, and then shot in the back..'"
All these events, and more remain etched in the memories of the Tamil people. The brutality of the war that India waged from 1987 to 1989, ostensibly against the Liberation Tigers of Tamil Eelam, but in effect against the Tamil people, brought its own repercussions.
If Rajiv Gandhi had been tried before an International Court of Justice, an opportunity may have been afforded for an informed judgement to be made on the extent of his guilt .. But, the extent of Rajiv Gandhi's culpability, for the crimes committed by those under his command in Tamil Eelam, will depend on the answer to several questions. Was he aware of the crimes that were being committed by the armed forces under his command?
Did he refrain from intervening to prevent such crimes, although he had the power to do so?
Did his attitude amount to incitement to crime and criminal negligence, and should his actions be judged as severely as the crimes actively committed and specifically covered by the humanitarian law of armed conflict?
Did he take steps to adequately punish those who were guilty, or did he condone their crimes?
Did his speeches in Parliament and elsewhere encourage those under his command to act with impunity - and to commit further crimes?
If Rajiv Gandhi had been tried before an International Court of Justice, an opportunity may have been afforded for an informed judgement to be made on the extent of his guilt, and whether, in any case, the imposition of the death penalty was justified - but there was no court of justice whose jurisdiction, the people of Tamil Eelam could have invoked.
Kannagi in Cilapathikaram, took the law into her own hands and burnt down Madurai in her search for justice... Kannagi in Cilapathikaram, took the law into her own hands and burnt down Madurai in her search for justice. 'Chaste women of Madurai, listen to me!
Today my sorrows cannot be matched.
Things which should never have happened have befallen me.
How can I bear this injustice?' ... With her own hand she tore the left breast from her body.
Thrice she surveyed the city of Madurai,
calling her curse in bitter agony.
Then she flung her fair breast on the scented street. ... "In the street of the singing girls
where so often the tabor had sounded
with the sweet gentle flute and the tremulous harp .
the dancers, whose halls were destroyed, cried out:
Whence comes this woman! Whose daughter is she?
A single woman, who has lost her husband,
has conquered the evil King with her anklet,
and has destroyed our city with fire!'"
Today Kannagi is deified in many parts of Tamil Nadu. It is a story rooted in the ordinary lives of the early Tamils of the Pandyan Kingdom in the first century A.D. and is regarded by many as the national epic of the Tamil people. Professor A.L. Basham writing in 'The Wonder that was India' commented that Cilapathikaram has ''a grim force and splendour unparalled elsewhere in Indian literature - it is imbued with both the ferocity of the early Tamils and their stern respect for justice, and incidentally, it throws light on early Tamil political ideas.''
Again, the international dimension of the assassination may not be without relevance... Again, the international dimension of the assassination may not be without relevance. The Jain Commission in its Report on the Rajiv Gandhi Assassination concluded in 1997 "..By far, however, one of the most mysterious and yet unravelled threat perception revolves around a warning given by Chairman of PLO, Yasser Arafat to Shri. Rajiv Gandhi. This extremely significant piece of information was received by the Intelligence Bureau on 7th June 1991 and more details in this regard were received by R&AW in September 1991 from Tunis. (Deposition of Shri S.A. Subbaiah, dt. 14.02.1996, p. 5) The information indicated that Yasser Arafat, Chairman of the Palestine Liberation Organisation (PLO) had received intelligence reports from his sources in Israel and his European sources one month before the assassination of Shri. Rajiv Gandhi that there existed threats to the life of Shri. Rajiv Gandhi from LTTE or Sikh militants who, the sources mentioned, would eliminate Shri. Gandhi during the election period. Yasser Arafat's sources also indicated that hostile powers from outside India may also attempt the assassination of Shri. Rajiv Gandhi. As per information received by the intelligence agencies, Yasser Arafat had drawn the attention of Shri. Rajiv Gandhi to this information. The Palestinian Ambassador in India had also spoken to Shri. Rajiv Gandhi in this connection. Some enquiries to obtain specific details appear to have been made in this regard by the External Affairs Ministry with the PLO Ambassador in India, Khalid El Sheikh, but nothing worthwhile has emerged so far. This was a prophetic threat perception directly conveyed to Shri. Rajiv Gandhi one month before his assassination and, therefore, in order to get to the bottom of the conspiracy, it is essential to conduct an enquiry into this definite indicator which discloses foreknowledge of foreign intelligence agencies regarding the event... "
Major General Asfir Karim commented in 1993 "..as happened in the case of President Kennedy's assassination, on that of Martin Luther King's, it may not be easy to establish the conspiracy theory. Even the motives of the assassination of Olaf Palme, then Swedish Prime Minister, remain obscure till today. As I have mentioned earlier, the primary question is why was Rajiv Gandhi killed and not that who killed him. The LTTE men could be merely tools to execute the plot...There is a strong belief in certain circles that Olaf Palme, the Swedish Prime Minister, was also eliminated by a strong arms sales lobby, possibly in connection with the Bofors deal with India. Could there be a possible connection between Palme's and Rajiv Gandhi's assassinations?"
And Pranay Gupte and Rahul Singh asked in1997: Who killed Olof Palme and Rajiv Gandhi? "...More than the money, Bofors is the story of betrayal of faith by a Prime Minister who said he would make India a prosperous and self-respecting country. What does the case say about the international arms trade? The international arms bazaar is an a-moral world frequented not just by arms dealers but also by politicians and bureaucrats who in some cases depend on these salesmen of death for their political survival..."
Many Tamils will continue to grapple with (and agonise over) the question of moral laws and ethical ideals in the context of an armed struggle for freedom... Be that as it all may, many Tamils will continue to grapple with (and agonise over) the question of moral laws and ethical ideals in the context of an armed struggle for freedom. The question troubled Arujna in the battlefield of Kurushetra. Aurobindo grappled with it in the 'The Evolution of Man': "Since perfection is progressive, good and evil are shifting quantities and change from time to time their meaning and value. Four main principles successively, govern human conduct. The first two are personal need and the good of the collectivity. A conflict is born of the opposition of the two instinctive tendencies which govern human action: the individualist and the gregarious. In order to settle this conflict, a new principle comes in, other and higher than the two conflicting instincts, and aiming both to override and to reconcile them. This third principle is the ethical ideal. But conflicts do not subside; they seem rather to multiply. Moral laws are arbitrary and rigid; when applied to life, they are obliged to come to terms with it and end in compromises which deprive them of all power. Behind the ethical law, which is a false image, a greater truth of a vast consciousness without fetters unveils itself, the supreme law of our divine nature. It determines perfectly our relations with each being and with the totality of the universe, and it also reveals the exact rhythm of the direct expression of the Divine in us. It is the fourth and supreme principle of action, which is at the same time the imperative law and absolute freedom...."
And, now, the sentences of death passed on four of the accused in the Rajiv Gandhi assassination case, compels us to examine these issues yet again - and silence may not be an option... And, now, the sentences of death passed on four of the accused in the Rajiv Gandhi assassination case, compels us to examine these issues yet again - and silence may not be an option. On 8 October 1999, the Indian Supreme Court confirmed the sentence of death passed on G.Perarivalan (alias) Arivu, Murugan (alias) Sri Haran, Santhan (alias) Suthenthiraja and Nalini Bagyanathan in the Rajiv Gandhi assassination case.The sentences are scheduled to be carried out on 5 November 1999. The London Tamil Information Centre and Amnesty International, amongst others appealed to the President of India to commute the death sentences. The appeals were founded on two grounds: 1. that the death penalty is an extreme form of cruel, inhuman and degrading treatment and a violation of the right to life, as proclaimed in the Universal Declaration of Human Rights and other international human rights instruments. 2. that the accused did not receive a fair trial according to international standards for fair trial.
The first ground concerns the death penalty as such. Whilst it is true that the UN Commission on Human Rights in April 1997 called on all states that had not yet abolished the death penalty "to consider suspending executions, with a view to completely abolishing the death penalty" it is also true that the carefully worded resolution which called upon governments 'to consider' suspending executions, 'with a view to' abolishing the death penalty (at some future date), reflected the political reality that there was no international consensus on abolishing the death penalty. The Indian legislature has not abolished the death penalty and the President of India may find it difficult to find reasons to suspend the operation of the law and in effect, reverse the decision of the Supreme Court, in the case of the assassination of a former Prime Minister - unless, he takes the view that the accused did not receive a fair trial, and that to authorise the killing of four humans on the basis of such a trial may result in a grave miscarriage of justice.
Were Perarivalan, Murugan, Santhan, and Nalini Bagyanathan convicted after a fair trial or was the trial simply a 'show trial' with a pre ordained ending? ... It is therefore, this question of a fair trial which must remain the crucial issue. Were Perarivalan, Murugan, Santhan, and Nalini Bagyanathan convicted after a fair trial or was the trial simply a 'show trial' with a pre ordained ending? Procedural law is civilisation's substitute for private vengeance and self-help. 'Lynch law' is no law. Was the procedure adopted to establish the guilt of the accused in the Rajiv Gandhi assassination a fair one? Was Amnesty International right in pointing out that: "The legislation under which they were tried... contravenes several international standards for fair trial, including the holding of trials in camera and the non-disclosure of the identity of witnesses." (Amnesty International Appeal, 29 January1998)
Perarivalan, Murugan, Santhan, and Nalini Bagyanathan were tried under the Indian Terrorism and Disruptive Activities (Prevention) Act (TADA) and not under the normal law of the land. The trial was held before a Judge, specially appointed under the Terrorism and Disruptive Activities (Prevention) Act. The trial was held in secret, away from public scrutiny. The fundamental principle of justice that justice must not only be done, but must also be seen to done is not a cliche. Secrecy breeds abuse of due process. It is when courts function openly and in the public gaze, that the impartiality of the justice system is secured. . The trial was held in a police dominated environment. It was held within the precincts of Poonamallee jail in Madras, which was designated a special court under TADA. It was the same jail where many of the accused had been detained (and interrogated) for several months since their arrest. (Amnesty International Appeal - 29 January 1998) In addition, TADA secured the non-disclosure of the identity of witnesses. This not only prevented effective cross examination but also rendered it easier for testimony of doubtful veracity to be introduced by the investigating agencies. Confessions to a police officer of the rank of a Superintendent of Police, were rendered admissible under TADA. And, where a confession implicated a co accused, the Court was required to presume that such co accused was guilty and the burden shifted to the co accused to prove his or her innocence. These provisions of TADA violated the fundamental principle of justice that every one shall be presumed innocent until proved guilty. The TADA legislative frame also falls to be considered in the context of a country where torture by the police was a routine occurrence. Amnesty International reported in 1992: Police officers of all ranks, and in some cases magistrates, doctors and state officials, have conspired to conceal the truth about torture, rape and death in custody and to shield the guilty... Torture is also routinely used during the interrogation of criminal suspects, even those accused of the most petty offences. ...Political prisoners are often brutally tortured and untold numbers have died as a result. The Indian Government, while refusing access to international organisations and failing to respond seriously to the international human rights procedures of the UN, has claimed that its legal system, free press and civil liberties organisations are adequate to address human rights violations. Sadly, this is not the case.
It will not be wrong to conclude that even the normal propensity of investigating authorities in India to extract confessionary statements would have increased several fold in relation to the Rajiv Gandhi case. There was considerable political pressure on the investigating authorities 'to deliver the goods'. It is not without significance that although the charge sheet against the original 26 accused was not drawn up until May 1992 and the preliminary trial did not begin until May 1993, the Subjects Committee of the ruling Indian National Congress, had as early as 14 April 1992, unanimously adopted a Political Resolution, calling for a ban on the LTTE for its involvement in the Rajiv Gandhi assassination.Again, though trial proceedings started on 5 May 1993 and ended on 2 November1997, the TADA judge who heard the case for the most part, Mr S.M. Siddick, was elevated to the Madras High Court bench and the judgment was delivered by his successor Mr. V Navaneetham on 28 January 1998. The unwritten rule that a trial judge, who takes up a sessions case, which also covers murder under Section 302 of the Indian Penal Code should deliver judgment, before taking up his next assignment was not observed in this instance. And it was Judge Navaneetham who sentenced all 26 accused to death. And in a revealing interview with The Week in February 1998, D.R. Karthikeyan who led the Special Investigating Team (SIT) into the Rajiv Gandhi assassination declared: "I was convinced that all the accused would get maximum sentence...... I have done my national duty. I was shocked by the assassination of Rajiv Gandhi; it was a personal blow. I knew him so well and he always had a good word about me. I was deeply attached to him ever since I met him in Moscow, when he had accompanied his mother who was Prime Minister. He used to telephone me often..."
If the assassination of Rajiv Gandhi was wrong, then, it is worse, to punish on the basis of a show trial which, in truth, was no trial at all... However, on appeal the Indian Supreme Court on 11 May 1999, reversed the finding of the TADA court and held that the trial court had erred in law in convicting the accused of offences relating to terrorism under Sections 3 and Section 5 of TADA. The Indian Supreme Court acquitted all the accused of the 'terrorism' charge and also quashed the sentences of death on all but four of the accused. In the result, these four accused, Perarivalan, Murugan, Santhan, and Nalini Bagyanathan though acquitted of the 'terrorism'charges under TADA, were nevertheless sentenced to death, on the basis of facts determined in a trial under the procedural rules specified in TADA, in respect of offences which were indictable under the normal laws of the land. They were, in this way, denied the procedural safeguards which would have been available to them under the normal law. The Indian Supreme Court constrained by the law, took the view though the accused had been acquitted of the 'terrorism' charge, and though TADA itself had been allowed to lapse by the Indian Government by the time that the appeal was heard, TADA was nevertheless the operative law at the time of the trial. It was not within the remit of the Indian Supreme Court to over ride the provisions of the Terrorism and Disruptive Activities (Prevention) Act. However the, question that will trouble many is whether the guilt of Perarivalan, Murugan, Santhan, and Nalini Bagyanathan in the Rajiv Gandhi assassination, would have been proven if they had been tried under the normal law of the land in accordance with international standards for a fair trial. What was the extent of their culpability? Did they have the requisite criminal intent or were they innocent instruments? Was their conduct consistent only with their guilt? What reliance may be placed on the results of a police investigation which was subject to immense political pressure to 'deliver the goods'? An investigation where though the majority of those accused were arrested in July 1991, a charge sheet was not drawn up until May 1992 and a preliminary trial did not begin until May 1993. The trial itself took place in January 1994 in the Poonamallee jail in Madras, designated a special court under TADA, where many of those sentenced had been detained for almost seven years since arrest. What weight may be placed on the testimony of witnesses whose identities were not disclosed - secret witnesses who stood behind a screen to answer Counsel's queries? What value may be placed on confessions secured in a police dominated environment where torture was 'routine'? Were issues such as these properly addressed at the secret trial in Poonamallee jail? Was the Trial Judge who, had clearly erred when he sentenced all 26 accused to death and who had held wrongly that the accused were guilty of terrorism, subject to the same pressures to which the police investigation had been subject? Did his understandable concern to bring to justice those who had assassinated a Prime Minister of India, deny the accused a fair hearing in the secret trial in Poonamallee jail? As an appellate court, the Indian Supreme Court was bound by the facts as determined by the trial court, unless it was shown that the trial court had erred in law. But were the findings of fact by the trial judge vitiated by the draconian provisions of the law itself - the TADA provisions, which in the assessment of Amnesty International, contravened 'several international standards for fair trial, including the holding of trials in camera and the non-disclosure of the identity of witnesses'?
The assassination of ex Prime Minister Rajiv Gandhi was wrong, because it was wrong to punish without charge and without trial according to law. But, if that was wrong, then, the proposed judicially authorised killing of Perarivalan, Murugan, Santhan, and Nalini Bagyanathan is worse because it seeks to punish on the basis of a secret trial which, in truth, was no trial at all - a show trial with a pre ordained ending with features which, to many Tamils, may invite comparison with the infamous show trials of 1936 under Stalins regime in the then Soviet Union. | 
Rajiv Gandhi's War Crimes