The Madras High Court on Friday ordered notice to the State government on a writ petition filed by former Prime Minister Rajiv Gandhi assassination case convict, S. Nalini, to declare as unconstitutional the Governor’s “failure” to release her by acting upon a recommendation made by the State Cabinet on September 9, 2018 in favour of all seven life convicts in the case.
Chief Justice Sanjib Banerjee and Justice P.D. Audikesavalu ordered that the State government should file a counter affidavit after the Dussehra vacation. The direction was issued after hearing her counsel M. Radhakrishnan, who contended that the Governor was bound to act as per the aid and advice of the council of Ministers and not otherwise.
In an affidavit filed through her counsel on record, P. Pugalendhi, Nalini also sought a consequential direction to the State government to release her without waiting any more for the Governor’s nod. The convict recalled that she was originally sentenced to death by the trial court on January 28, 1998. The Supreme Court too, confirmed the death penalty on May 11, 1999. However, the penalty was commuted to a life sentence under Article 161 (Governor’s power to suspend, remit or commute sentences) on April 24, 2000.
After the commutation, about 3,800 life convicts who had served either 10 years of imprisonment or even less were released under Article 161 of the Constitution because of their good conduct in prison. The petitioner claimed that though she became eligible to be considered for such a premature release in 2001 itself, her name was not considered at all by stating that her case was investigated by the Central Bureau of Investigation and that acts as a disqualification.
Nevertheless, referring to the 2018 Cabinet decision to release all seven convicts in the case, Nalini claimed the decision was binding upon the Governor who had to “no discretion whatsoever” but to act in accordance with the aid and advice of the Council of Ministers.
“In other words, I ought to have been released on the next day i.e., on September 10, 2018,” the convict contended and lamented that the Governor was yet to take a call on the Cabinet recommendation.
She also disclosed that her two writ petitions, one seeking a direction to the government to implement the Cabinet recommendation and the other seeking a direction to the Governor to countersign the recommendation, were dismissed by the High Court on August 20, 2019. Hence, she had now filed a third writ petition seeking a writ of declaration that the Governor’s “failure” to act in accordance with the recommendation was unconstitutional.
The convict heavily relied upon the Supreme Court ruling in the Maru Ram versus Union of India case, decided by a five judge Bench on November 11, 1980 to contend that the advice of the Council of Ministers was binding on the head of the State.
