The State Government has urged the Madras High Court to dismiss a writ petition filed by former Prime Minister Rajiv Gandhi assassination case convict S. Nalini to declare as unconstitutional the alleged failure on the part of the Governor to act upon the State Cabinet’s September 9, 2018, recommendation to release all seven life convicts involved in the crime.
In a counter affidavit served on her counsel, M. Radhakrishnan and P. Pugalendhi, the State Government said the Centre had already informed the Supreme Court that the Governor, after due consideration, had, on January 25 this year, come to a conclusion that the President would be the appropriate authority to take a call on the premature release of the seven convicts.
The State Government highlighted that the Supreme Court, in several decisions, had held that the Constitutional power conferred on the President and the Governor to grant pardon was neither a matter of grace nor a matter of privilege, but an important Constitutional responsibility to be discharged by keeping in mind the larger public interest and welfare of people.. The Government recalled that the Supreme Court, in a 2006 verdict, had held that “the power of executive clemency is not only for the benefit of the convict but while exercising such a power, the President or the Governor has to keep in mind the effect of their decision on the family of the victims, the society as a whole and the precedent it sets for the future.”
The counter affidavit further pointed out that the CBI, which probed the assassination and prosecuted the convicts, had opposed any move to release the seven convicts on the ground that “it will set a very dangerous precedent and lead to international ramifications by other such criminals in the future.”
The Home Department said the writ petitioner had been convicted under Section 302 (murder), read with Section 34 (acts done by several persons in furtherance of common intention), of the Indian Penal Code, on 16 counts, since 15 others, including many government officials, had died in the bomb blast in Sriperumbudur on May 21, 1991.
A death sentence awarded by a Sessions Court on January 28, 1998, was confirmed by the Supreme Court on October 8, 1999, and her first mercy petition was rejected by the Governor on October 17, 1999. It was only on reconsideration, following the High Court’s orders, that the Governor commuted the death sentence to life imprisonment in April 2000.
Though the writ petitioner had heavily relied upon the Supreme Court’s verdict in Maru Ram versus Union of India (1980) to contend that the State Government could release her without waiting for the Governor’s nod, the counter affidavit referred to the same verdict and stated that a convict could be released only upon issuance of a Government Order.
“In the instant case, even though the council of Ministers have recommended the premature release of the petitioner, orders are yet to be issued by the first respondent to this effect... The present writ petition is not at all maintainable either in law or on facts,” the counter affidavit, filed by a Joint Secretary, on behalf of the Home Secretary, read.
