The Hindu : National : Commutation of death sentence for Nalini vitiated by illegality: Swamy

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Commutation of death sentence for Nalini vitiated by illegality: Swamy

Special Correspondent

She cannot apply for premature release under Section 433 A Cr.PC

CHENNAI: Strongly opposing the plea for the premature release of Nalini, a life convict in the Rajiv Gandhi assassination case, Janata Party leader Subramanian Swamy on Thursday said the commutation of the death sentence on her was vitiated by illegality.

In his submissions before Justice S. Nagamuthu, Dr. Swamy said the Centre should have either adopted the Tamil Nadu government’s argument or answered some of the issues arising in the petition filed by Nalini.

The Centre on Wednesday submitted that it was not filing any counter to Nalini’s petition seeking premature release. On Thursday, it said it was adopting the State government’s argument.

In his written arguments, Dr.Swamy said Nalini had filed a mercy plea before the President, but she did not disclose its outcome in the present writ petition. But, according to her, after Congress leader Sonia Gandhi publicly stated that she had no objection to the petitioner’s death sentence being commuted to life imprisonment, she (Nalini) preferred an application to the Governor for clemency. This public statement was material evidence in the writ petition and hence the Centre should have filed a counter affidavit, and documented the statement and the reasons for the same. Failure to do so remained a mystery.

“Misconceived prayer”

Dr. Swamy argued that the prayer in Nalini’s writ petition seeking a direction to the respondents to order her premature release was misconceived. She could not apply for premature release from prison under Section 433 A of the Criminal Procedure Code. That provision would apply only if the original commutation of death sentence to life imprisonment had been made under Section 433 Cr.PC.

Discretion rests with government

Quoting a Supreme Court order, Dr. Swamy said unless an order of commutation under sub-section (b) of Section 433 Cr.PC was issued, life imprisonment meant imprisonment for life. Nalini could not claim as a fundamental right that the appropriate government should set her free after she served a 14-year imprisonment. The discretion whether to release her or not rested with the appropriate government even if an order was issued under Section 433 (b) Cr.PC.

In a review of the Swami Shraddhanand case, the Supreme Court reaffirmed the settled case law i.e., that a commuted sentence of life imprisonment meant imprisonment for the physical life of the convict unless the order of commutation of the death penalty specifically stated otherwise.

Rarest of rare cases

The Rajiv Gandhi assassination case was the rarest of rare cases and deserving of capital punishment that the Supreme Court upheld and reconfirmed on the review petitions filed by the convicts, including Nalini.

The apex court’s observations while upholding the death sentence were relevant in deciding the present writ petition.

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