Central Information Commission
A G Perarivalan vs Ministry Of Home Affairs on 17 August, 2018
CENTRAL INFORMATION COMMISSION
Baba Gang Nath Marg, Munirka
New Delhi-110067
F. No.CIC/MHOME/A/2017/165134
Date of Hearing : 27.07.2018
Date of Decision : 14.08.2018
Appellant/Complainant : A G Perarivalan
Respondent : PIO
O/o the Joint Secretary -(SR)
Ministry of Home Affairs
CS Division
Through:-
Shri Manas Mondal,
Under Secretary, MHA
Information Commissioner : Shri Yashovardhan Azad
Relevant facts emerging from appeal:
RTI application filed on : 08.01.2016
PIO replied on : 26.02.2016
First Appeal filed on : 06.04.2016
First Appellate Order on : -
2nd Appeal/complaint received on : 08.08.2016
ORDER
Information sought and background of the case:
1. The present appeal is preferred by appellant feeling dissatisfied with information furnished by the PIO. To appreciate the present controversy it would be relevant to narrate the factual backdrop espousing the present matter.
2. The appellant herein is a life convict facing conviction in reference with the Rajiv Gandhi Assassination Case. He is presently undergoing life imprisonment along with other accomplices convicted in the same matter. On 21.05.1991, the former Prime Minister of India late Rajiv Gandhi was assassinated in a terror attack at Sriperumbudur in Tamil Nadu. A case was registered and investigation carried out by Central Bureau of Investigation. The appellant herein along with other accomplices was apprehended and tried for various offences. The accused 1 persons were convicted and sentenced to death by the trial court. A three judge bench of the Hon'ble Supreme Court in State through Superintendent of Police, CBI/SIT vs. Nalini and Ors. (11.05.1999 - SC) : MANU/SC/0945/1999 pronounced the following verdict:
1. Rajiv Gandhi, a former Prime Minister of India was assassinated on 21-
5-1991 at a place called Sriperumpudur in Tamil Nadu. The assassin was an adolescent girl named Thanu who was made into a human bomb and she got herself exploded at 10.19 P.M. at very close proximity to the visiting former Prime Minister. In a trice the life of Rajiv Gandhi was snuffed out and his body was smashed into smithereens. As for the assassin nothing except a few pieces of charred limbs and her sundered head were left behind. In the explosion lives of 18 others also got extinguished. Investigation pointed to a minutely orchestrated cabal, masterminded by some conspirators to extirpate the former Prime Minister from this terrestrial terrain. In the final charge-sheet made by the Central Bureau of Investigation (CBI) all the 26 appellants now before us, were arraigned as members of the conspiracy which targeted, inter alia, Rajiv Gandhi. The Special Judge who tried the case found all the 26 appellants guilty of various offences charged, the gravamen of them being Section 302 read with Section 120-B IPC. All of them were hence convicted of those offences and all of them were sentenced to death. ......
728. The conviction for the offence under Section 120-B read with Section 302, Indian Penal Code as against A-1 (Nalini), A-2 (Santhan alias Raviraj) A-3 (Murugan alias Thas ), A-9 (royert Pauyyas), A-10 (Jayakumar), A-16 (Ravichandran alias Ravi) and A-13 (Perarivlan alias Arivu), is confirmed.
729. We set aside the conviction and sentence of the offences under Section 302 read with Section 120B passed by the trial court on the remaining accused.
730. The sentence of death passed by the trial court on A-1 (Nalini), A-2 (Santhan), AA-3 (Murugan and A-18 (Aivu), is cofirmed. The death sentence passed on A-9 (Royert), A-10 (Jayakumar) and A-16 (Ravichandran) is altered to imprisonment for life. The reference is answered accordingly.
2731. In other words, except A-1 (Nalini), A-2 (Santhan), A-3 (Murugan, A-9 (Royert Payas), A-10 (Jayakumaro, A-16 (Ravichandran and A-18 (Arivu), all the remaining appellants shall appellants shall be set at liberty forth with.
3. However, a petition seeking Presidential pardon against conviction was preferred by the death convicts which remained under consideration of Govt. of India.
4. Following the dicta laid by Hon'ble Supreme Court in Shatrughan Chauhan and Ors. vs. Union of India (UOI) and Ors. (21.01.2014 - SC) :
MANU/SC/0043/2014 that held that 'undue and unexplained delay in deciding mercy petitions' was a legitimate ground for the death convicts to approach the Apex Court seeking commutation of death penalty to life imprisonment, the Supreme Court while deciding the challenge of life convicts in Rajiv Gandhi assassination case in V. Sriharan vs. Union of India (UOI) and Ors. (18.02.2014 - SC) : MANU/SC/0104/2014 commuted the death penalty to life imprisonment. Relevant observations from the judgment are reproduced:
.....
4. In these petitions, we are concerned only with the rejection of the mercy petitions of the Petitioners by the President of India under Article 72 of the Constitution after the confirmation of death sentence by this Court, thus there is no need to traverse the factual details leading up to the imposition of death sentence.
5. Initially, the mercy petitions were filed before the Governor of Tamil Nadu on 17.10.1999 and the Governor, on 27.10.1999, rejected the same.
Subsequently, the said rejection was challenged before the Madras High Court in W.P. Nos. 17655-17658 of 1999 on the ground that the mercy petitions were decided without consulting the Council of Ministers, which is unsustainable in law. Accordingly, by order dated 25.11.1999, the Madras High Court set aside the order of rejection of mercy petitions by the Governor and directed to reconsider the mercy petitions afresh. Thereafter, on 25.04.2000, the Governor again rejected the mercy petitions.
6. Consequently, the mercy petitions were forwarded to the President on 26.04.2000 for consideration under Article 72 of the Constitution. The President, on 12.08.2011, rejected these mercy petitions after a delay of 3 more than 11 years. The rejection of the aforesaid petitions was communicated to the Petitioners on 25.08.2011. Subsequently, the said rejection was also challenged in W.P. Nos. 20287-20289 of 2011 before the Madras High Court on 29.08.2011. Later, by order dated 01.05.2012, in Transfer Petition (Criminal) Nos. 383-385 of 2011 and 462-464 of 2011, this Court transferred all the three writ petitions to this Court in the interest of justice. Pursuant to the aforesaid order, the Madras High Court transmitted the original records to this Court, which have been registered as Transferred Case (Criminal) Nos. 1-3 of 2012. All the Petitioners are currently lodged in the Central Prison, Vellore, Tamil Nadu and they are in incarceration since 1991, i.e., for more than two decades. .....
29. We are confident that the mercy petitions filed under Article 72/161 can be disposed of at a much faster pace than what is adopted now, if the due procedure prescribed by law is followed in verbatim. The fact that no time limit is prescribed to the President/Governor for disposal of the mercy petition should compel the government to work in a more systematized manner to repose the confidence of the people in the institution of democracy. Besides, it is definitely not a pleasure for this Court to interfere in the constitutional power vested under Article 72/161 of the Constitution and, therefore, we implore upon the government to render its advice to the President within a reasonable time so that the President is in a position to arrive at a decision at the earliest.
30. Before we conclude, we would also like to stress on one more aspect. We have learnt that the Union Government, considering the nature of the power under Article 72/161, set out certain criteria in the form of circular for deciding the mercy petitions. We hereby recommend that in view of the recent jurisprudential development with regard to delay in execution, another criteria may be added to the existing yardsticks so as to require consideration of the delay that may have occurred in disposal of a mercy petition.
31. In the light of the above discussion and observations, in the cases of v. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu, we commute their death sentence into imprisonment for life. Life imprisonment means end of one's life, subject to any remission granted by the appropriate Government under Section 432 of the Code of Criminal 4 Procedure, 1973 which, in turn, is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code. All the writ petitions are allowed on the above terms and the transferred cases are, accordingly, disposed of.
5. On the very next day of the aforesaid pronouncement whereby death sentence of convicts was altered to life imprisonment, the Govt. of Tamil Nadu vide letter dated 19.02.2014 proposed to remit the sentence of life imprisonment of all 07 life convicts in the Late Rajiv Gandhi assassination case. The said decision of Govt. of Tamil Nadu was challenged before the Supreme Court by Central Govt in Union of India (UOI) vs. V. Sriharan and Ors. (25.04.2014 - SC) :
MANU/SC/0363/2014. Relevant excerpts are reproduced hereinafter:
1. This writ petition, Under Article 32 of the Constitution of India, has been filed by the Union of India praying for quashing of letter dated 19.02.2014, issued by the Chief Secretary, Government of Tamil Nadu to the Secretary, Government of India wherein the State of Tamil Nadu proposes to remit the sentence of life imprisonment and to release Respondent Nos. 1-7 herein who were convicted in the Rajiv Gandhi Assassination Case in pursuance of commutation of death sentence of Respondent Nos. 1-3 herein by this Court on 18.02.2014 in Transferred Case Nos. 1-3 of 2012 titled V. Sriharan @ Murugan and Ors. v. Union of India and Ors. MANU/SC/0104/2014 : 2014 (2) SCALE 505.
....
Factual Background:
4. Pursuant to the judgment of this Court dated 18.02.2014 in v. Sriharan @ Murugan (supra), the Government of Tamil Nadu took a decision to grant remission to Respondent Nos. 1 to 7. Accordingly, the Government of Tamil Nadu sent a letter dated 19.02.2014 to the Secretary to the Government of India, Ministry of Home Affairs, stating that it proposes to remit the sentence of life imprisonment on v. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu and release them. In that letter, it was further stated that four other persons, namely, Jayakumar, Robert Payas, S. Nalini and P. Ravichandran, convicted in the same assassination would also procure similar remission. Besides, it was asserted in the letter that since the crime was investigated by the Central Bureau of Investigation (CBI) and as per Section 435 of the Code of 5 Criminal Procedure, 1973 (in short "the Code"), the State Government, while exercising its power Under Section 432 of the Code, must act after consultation with the Central Government, accordingly, it requested to indicate the views of the Union of India within three days on the proposal to release the seven persons mentioned above.
......
49. All the issues raised in the given case are of utmost critical concern for the whole of the country, as the decision on these issues will determine the procedure for awarding sentences in the criminal justice system. Accordingly, we direct to list Writ Petition (Crl.) No. 48 of 2014 before the Constitution Bench as early as possible preferably within a period of three months.
6. In pursuance of the directions contained in para 49 of the aforesaid judgment, the matter of competence of State Govt. in extending benefit of remission to convicts was placed before a 5 Judge Constitution Bench. The Hon'ble Apex Court ruled that in facts of the present case, the decision of Govt. of Tamil Nadu was without the consultation (defined as Concurrence) of the Union Govt. and same was held bad in law.
7. Thereafter, the Govt. of Tamil Nadu made a fresh proposal dated 02.03.2016 to the Central Govt. proposing remission of the life convicts under scheme of Section 435 CrPC. The communication remained under consideration. A 3 Judge bench of Hon'ble Supreme Court vide order dated 23.01.2018 in Union Of India vs. V. Sriharan @ Murugan and Ors. (23.01.2018 - SC Order) :
MANU/SCOR/05727/2018 passed the following order directing the Central Govt. to consider the proposal dated 02.03.2016:
ORDER Upon hearing the learned counsels for the parties we are of the view that the order that would be appropriate at this stage is to keep the present writ petition pending and require the Union of India to consider and decide on the communication/letter No.58720/Cts.-VIA/2008 dated 2nd March, 2016 of the Government of Tamil Nadu within a period of three months with effect from today. We order accordingly.6
Such consideration will be made in the light of the decision of the Constitution Bench of this Court dated 2nd December, 2015 in Writ Petition (Criminal) No.48 of 2014 (Union of India Vs. V. Sriharan alias Murugan and others) and other connected cases. List the matter thereafter.
8. In compliance of the aforesaid order, the Govt. of India passed the order dated 18.04.2018, which has been filed on record by the respondents. The same reads as:
No.F.10/12/2011-Judl.- II Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya (Judicial Wing, CS Division) Dated the 18" April, 2018.
ORDER WHEREAS, the Hon'ble Supreme Court vide Order dated 18.02.2014 in the assassination case of former Prime Minister Sh. Rajiv Gandhi in Transfer Petition (Crl.) No. 1-3/ 2012, commuted the death sentences awarded to three convicts namely V. Sriharan @ Murugan,(i) T. Suthendraraja @ Santhan, (i) A.G. Perarivalan @ Arivu to that of life imprisonment;
2 AND WHEREAS, the Government of Tamil Nadu vide its letter no. 58720/Cts-
VIA/2008 dated 19.02.2014 proposed to remit the sentences of above three convicts as well as other 4 life convicts in this case, namely (iv) Jayakumar (v) Robert Payas (vi) Ravichandran and (vii) Nalini, and to release them under section 432 of the Cr.P.C. and requested the Union Government to convey its views within three days as the investigation of the case was done by Central Bureau of Investigation (CBI);
3. AND WHEREAS, the Union of India filed Writ Petition (Crl.) No.48/2014, challenging the decision of the State Government to remit the sentences of the convicts and Hon'ble Supreme Court, vide its Order dated 02.12.2015 decided that in those situations covered by sub-clauses (a) to (c) of section 435(1) of the Cr.P.C. falling within the jurisdiction of the Central Government it will assume primacy and consequently the process "Consultation" in reality be held as the requirement of "Concurrence".
4. AND WHEREAS, the Government of Tamil Nadu vide its letter no. 58720/Cts-
VIA/2008 dated 02.03.2016 again proposed that the State Government had considered the petitions of 7 convicts in the Rajiv Gandhi assassination case 7 and decided to remit the sentences and to release all the seven convicts from prisons, and requested that the Central Government may communicate their views under section 435 of the Cr.P.C. on the decision of the Tamil Nadu Government.
5. AND WHEREAS, the Hon'ble Supreme Court vide its Order dated 23.01.2018 in W.P. (Crl.) No. 48/2014 has directed the Union of India to decide on the communication/ letter dated 02.03.2016 received from the Government of Tamil Nadu for the release of 07 convicts in Rajiv Gandhi Assassination case, within a period of 03 months;
6. AND WHEREAS, the proposal of the State Government was examined in consultation with the investigating agency.
7. AND WHEREAS, the case involves the assassination of a former Prime Minister of India, who was brutally assassinated in pursuance of diabolical plot carefully conceived and executed by a highly organised foreign terrorist organisation, sixteen innocent lives were lost and many sustained grievous injuries in the gruesome, inhuman, uncivilised and merciless bomb blast; the plot was successfully executed with the active help and participation of these convicts and others who were LTTE militants or its staunch supporters; nine police officers including a Superintendent of Police, who were public servants, and were on security duty lost their lives while on duty in this most heinous and gruesome crime, perpetrated as a result of a pre-planned and premeditated conspiracy; the brutal act brought the Indian democratic process to a grinding halt in as much as the general election to the Lok Sabha and Assemblies in some States had to be postponed;
8. AND WHEREAS, on the request of the Government of Tamil Nadu, the Central Bureau of Investigation (CBI) registered the case No. RC 9(S)/91- CBI/SCB/MAS on 24.05.1991 under various sections of IPC, the Explosive Substances Act 1908, the Arms Act 1859, the Passports Act 1967, the Foreigners Act 1946, the Indian Wireless Telegraphy Act 1933 and the TADA Act 1987: the case falls under section 435 (1)(a) of the Cr.P.C.
9. AND WHEREAS, the trial Court had given cogent reasons for imposing the death penalty upon the accused persons, while referring to the diabolical conspiracy, the use of a female human bomb, the number of lives lost in the incident etc. and justified the award of the death penalty; all three judges of the Supreme Court highlighted the conspiracy and the horrific nature of the crime and held that the case fell under the category of "rarest of rare cases"; the Apex Court also held that the murder of a former Prime Minister for what he did for the country, was an act of exceptional depravity on the part of the accused, an unparallel act in the annals of crimes committed in this Country.
810. AND WHEREAS, the CBI has opposed the Government of Tamil Nadu's proposal to release the convicts in the interest of justice; that the case has been reviewed, scrutinised by various forums of the judiciary and executive and both the highest judicial forum as well as the Executive forum have evaluated the case and decided the matter; releasing the four foreign nationals who had committed the gruesome murder of former Prime Minister of this Country alongwith 15 others most of whom were Police officers in connivance with three Indian Nationals will set a very dangerous precedent and lead to International ramifications by other such criminals in the future.
11. NOW THEREFORE, the Central Government, in pursuance of section 435 of the Code of Criminal Procedure, 1973, do not concur to the proposal of the Government of Tamil Nadu contained in their communication letter dated 02.03.2016 for grant of further remission of sentence to these seven convicts.
By order and in the name of the President of India.
Sd/-
(V. B. Dubey) Joint Secretary to the Government of India
9. Thus, the Central Govt. is opposed to the release of the life convicts in the matter. Now adverting to the RTI application of the appellant, the following information was sought by the appellant:
1. Copy of remission rules framed by the Central Government under Article 72 and 73 of the Constitution, as per the constitutional bench judgement of the Hon'ble Supreme Court dated 02.12.2015, in the matter of Union of India vs. V. Sriharan @ Murugan & Ors. Being writ petition no. 48 of 2014.
2. Copy of remission rules framed by the Central Government under sections 432, 433, 433A, 434 and 435 Cr.P.C., as per the constitutional bench judgment of the Hon'ble Supreme Court dated 02.12.2015, in the matter of Union of India v. V Sriharan @ Murugan & Ors. Being writ petition no. 48 of 2014.
3. Copy of circular /order/bylaw issued by the Central Government to all the State Government refraining the State Governments from granting any remission/suspension/release in the matter in which the Hon'ble Supreme Court held that Central Government to be the appropriate government in the above said constitutional bench judgment.9
4. Copy of all the order passed by the Central Government from 01.01.2010 to 31.12.2015 granting remission to various prisoners throughout India in the matters where the Central Government is the appropriate government.\
10. In RTI application was transferred to the Judicial Division, MHA. As per the appellant, the Judicial Division, MHA did not respond and the corresponding first appeal was also not heard. However, the course of hearing, the respondents from Judicial Division of MHA have produced a letter dated 11.04.2016 whereby the following reply was furnished to the appellant:
To Shri A.G.Perarivalan Ct.No.13906, Central Prision Vellore, Tamil Nadu 632002 Subject: Informatoin sought under RTI Act, 2005 - reg Sir, I am to refer to your RTI application dated 08.01.2016 registration No. MHOME/R/2016/00235 received in Judicial Division on 23.02.2016 seeking information related to remission rules framed by the Central Government with reference to the Constitutional bench judgement of the Hon'ble Supreme Court dated 02.12.2015 in the matter of Union of India Vs V.Sridharan @ Murugan & Others (W.P.No.48 of 2014)
2. In this context, it is stated that matter is sub-judice
3. However, as this division is concerned with the mercy petitions, it is submitted that there were 20 cases during 2010-2015 in which death sentence of the convicts were commuted to life imprisonment by the President of India under Article 72 of the Constitution.
Yours faithfully Sd/-
Manas Mondal CPIO & Under Secretary(Jud) 10
11. In course of hearing, the appellant was heard at length through video conferencing. The PIO was present was present and heard in person.
12. The respondent PIO Judicial Wing, MHA further submits that the letter of Govt. of Tamil Nadu was responded to by the MHA on 18.04.2018 furnishing the copy of order asked by the Central Government in the of President of India. The order has already been referred to in para 7 of the present order.
13. Relying upon the aforesaid communications, the PIO submits that desired information has been furnished to the appellant and the underlying grievance of the convict has been adjudicated upon as far as it related to the Central Government. He further submits that the Hon'ble Supreme Court seized of the matter and the RTI application has been dealt with adequately.
Decision:
14. The Commission finds that the reply of PIO dated 11.04.2016 was not complete as far as it related to various rules and guidelines framed by Central Government with regard to remission of convicts. The PIO failed to apply his mind and sought a blanket refuge under the guise of the matter being sub- judice. It is well settled that that mere pendency of a matter before a Court of Law does not render all information espousing the matter as exempted under the RTI Act. There was no specific direction from the Hon'ble Court to that effect. Hence, the decision of PIO was bad in law.
15. All that the appellant sought to know was the documented policy, rules governing the remission of convicts in light of a judicial pronouncement i.e. Union of India Vs. V.Sriharan alias @ Murugan and others. Hence the Commission finds the reply furnished to be arbitrary and sets the same aside as far as it relates to point No. 1 to 3.
16. As against point No. 4 of the RTI application, the numerical data of remission accorded to various prisoners throughout territory of India by the Central Government in the period of 01.01.2010 to 31.12.2015 has been furnished by the PIO. As per their reply, in 20 cases the sentence of death was commuted to life imprisonment. The reply is again misplaced since the appellant had sought to know the details of remission granted that the PIO furnished information regarding commutation of sentence by the Central Government which is not in fact relevant to the query of the appellant and the same is liable to be set aside.
1117. The Commission directs the PIO, Judicial Division MHA to furnish an unambiguous reply to the present RTI in hand. The appellant is entitled to know whether any set of rules governing the provisions of Article 72 & 73 of the Constitution of India as well as those under Section 432-435 CRPc were framed by the Central Government in compliance with the decision of the Hon'ble Supreme Court in Union of India Vs. V.Sriharan alias @ Murugan and others. The Commission hastens to clarify that the right of appellant to know the rules governing him has no impact on any judicial verdict. Rather, it is in larger public interest that such rules, if in existence, may be widely circulated.
18. Another interesting question yet remains to be decided. Under point No. 4 of the RTI application, the appellant has also demanded copies of all remission orders passed by the Central Government throughout the territory of India. The PIO has not taken a position in this regard, but in hindsight opposed the disclosure of the same. In the considered opinion of the Commission, grant of remission is an exercise of a statutory power under CrPC. It acknowledges the power of the Executive to grant remission to convicted persons after due consideration by the appropriate Government. As per the criminal jurisprudence, a crime besides being a personal wrong against the victim is also a wrong against the society at large. That is why, the prosecution in such penal offences is led by the State on behalf of the Society at large. The judgement passed by Court in a criminal matter is a public document since the interest of general public is involved. Following the same analogy, it is again in public interest that the public gets to know as to why a proved accused i.e. convict is being released. The Commission finds no reason to hold a remission order as classified and guarding the same from public vigil. The Commission sees no impediment if the remission orders are made public. The Commission in exercise of powers u/s 19(8) of the RTI Act directs the PIO MHA to place all orders granting or denying remission to various life convicts orders passed from the year 2000 onwards shall be uploaded on the website of MHA. In view of the foregoing, the Commission further directs the PIO to furnish copies of all orders on point No. 4 of the RTI application. Information shall be furnished within 3 weeks to the appellant. The directions u/s 19(8) of the RTI Act shall be complied by 30.09.2018.
19. The appeal is allowed in aforesaid terms.
(Yashovardhan Azad) Information Commissioner 12 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(R.P. Grover) Designated Officer 13