The Centre on Friday stoutly opposed the plea of S. Nalini, 52, convicted in former Prime Minister Rajiv Gandhi’s assassination case, to release her forthwith from prison on the ground that she had been kept in illegal detention since September 9, 2018 when the State Cabinet made a recommendation to the Governor for releasing all seven convicts in the case.
In a counter-affidavit filed before Justices R. Subbiah and R. Pongiappan, the Union Ministry of Home Affairs said that it had already rejected two proposals, mooted by the State government in 2014 and 2016, to release the convicts and that the latter decision was taken after consulting the CBI, which had probed the case.
Referring to an order passed by the Supreme Court on September 6, 2018 that the Governor would be at liberty to take a decision on a pending mercy plea of one of the convicts, A.G. Perarivalan, the Centre said, “Governor is a constitutional functionary and he has discretion to decide on the petition under the powers conferred upon him by the Constitution.”
The counter- affidavit, filed through Central government senior standing counsel K. Venkataswamy Babu, was however silent on the validity of the recommendation made by the State Cabinet to the Governor pursuant to the Supreme Court order. It also did not state whether the Governor was bound by the recommendation made by the Council of Ministers or not.
Referring to these anomalies, the petitioner’s counsel M. Radhakrishnan and P. Pugalenthi said that the Centre had absolutely no role in the present habeas corpus petition filed solely on the basis of the State Cabinet’s September 9, 2018 decision. They pointed out that the rejection orders referred to by the Centre were prior to the recent decision taken by the Council of Ministers.
It was on February 19, 2014 that the State government first decided to release all seven convicts and requested the Centre to convey its views since the case had been prosecuted by a central agency. Aggrieved over such a move, the Centre moved the Supreme Court challenging the “arbitrary” decision taken by the State government.
A five-judge Constitution Bench of the Supreme Court allowed the case in favour of the Centre on December 2, 2015 and ruled that the term ‘consultation’ found in Section 435(1) of the Code of Criminal Procedure would in reality mean concurrence and therefore the State government could not unilaterally release the convicts without prior approval of the Centre.
Thereafter, the State government sent a fresh proposal to the Centre on March 2, 2016 seeking concurrence and it was rejected by the latter on April 18, 2018. It was only after all these developments that the State Cabinet had on September 9, 2018 advised the Governor to release all seven convicts involved in the assassination case, Mr. Radhakrishnan pointed out.
Since the Governor was yet to take a call on the Cabinet recommendation, the petitioner, in her affidavit, said: “Since the advice of the Council of Ministers is binding on the Governor... my detention in prison with effect from September 10, 2018 is illegal.” She sought a direction to Vellore prison authorities to produce her in court and set her free.
The judges listed the case for final hearing on Wednesday.
