The Madras High Court on Monday reserved its verdict on a writ appeal preferred by S. Nalini, convict in the former Prime Minister Rajiv Gandhi assassination case, seeking premature release on humanitarian grounds by invoking powers conferred on the Governor under Article 161 of the Constitution since she had already completed over 25 years in prison.
A Division Bench of Justices K.K. Sasidharan and R. Subramanian heard the elaborate arguments advanced by Advocate General Vijay Narayan, who opposed the appeal citing pendency of a similar issue before the Supreme Court, as well as the appellant’s counsel M. Radhakrishnan before stating that its judgment shall be delivered on Friday.
A counter affidavit filed on behalf of the Home Secretary recalled that Nalini was convicted by a Special Court at Poonamallee near here on January 28, 1998 for the assassination of Rajiv Gandhi on May 21, 1991. Her conviction and death sentence were confirmed by the Supreme Court on October 8, 1999.
She submitted a mercy petition to the Governor on October 17, 1999 and it got rejected on October 27, 1999. A writ petition challenging the rejection was disposed of on November 25, 1999 with a direction to consider the mercy plea afresh. Accordingly, a Government Order was issued on April 24, 2000 commuting her capital punishment to life imprisonment.
On December 28, 2006, an Advisory Board considered the feasibility of releasing her from prison since she had completed 14 years of incarceration and submitted a negative report to the government since the crime committed by her was grave. The issue was considered once again in 2010 and this time too the Advisory Board rejected the claim.
However, in 2014 the State government proposed to release all seven convicts — V. Sriharan alias Murugan, T. Suthendraraja alias Santhan, A.G. Perarivalan, Jayakumar, Robert Payas, P. Ravichandran and Nalini — and wrote a letter to the Union Home Ministry on February 19, 2014 seeking its views.
Constitutional issues
“The Government of India, instead of offering its views on the above proposal, filed a writ petition in the Supreme Court to quash the above government letter,” the counter affidavit stated. It also pointed out that a three-judge Bench of the Supreme Court on April 25, 2014 referred the issue to a five-judge Bench for answering certain constitutional issues.
“The five-judge Bench answered the reference on December 2, 2015 and dealt with the question of law alone but what has to be done with these seven persons was left to the three-judge Bench... So as on date, the three-judge Bench of the Supreme Court is seized of the matter,” the Advocate General told the court.
However, Mr. Radhakrishnan argued that the State government could order premature release dehors the matter pending before the Supreme Court since the issue pending before the apex court was related to exercise of powers under Section 432 of Code of Criminal Procedure and not under Article 161 of the Constitution.
“I did not go to the Supreme Court, it was the Centre which had gone to the Supreme Court. I am only seeking release under a 1994 scheme framed by the State government to release prisoners who had completed 20 years of incarceration. Let the State Government consider my plea and pass appropriate orders,” he contended.
