CHENNAI: The Madras High Court today said it will pronounce its order on Friday on an appeal filed by Nalini, a life convict in former prime minister Rajiv Gandhi assassination case, seeking premature release.
A division bench, comprising Justices K K Sasidharan and R Subramanian, reserved orders on the plea by Nalini challenging the order of a single judge rejecting her prayer for premature release under a 1994 state government scheme under Article 161 (powers of Governor to grant pardon).
Nalini in a February 22, 2014 representation to the state government had sought premature release under the 1994 scheme and had later moved the court.
The state government had opposed the plea citing pendency of a similar matter in the Supreme Court then, following which the single judge had asked it to consider the representation subject to the outcome of the apex court proceedings.
The Supreme Court in its March 2016 order had made it clear that for pre-mature release pleas under the CrPc Section 435, concurrence by the Centre was required in cases handled by central agencies such as the CBI.
During arguments before the bench today, Nalini's counsel Radhakrishnan said the apex court order was nowhere connected with the present case as his client had sought premature release under Article 161.
She sought premature release under the scheme announced by the state government in 1994 to release life convicts who had served actual imprisonment of 20 years.
Premature release under Article 161 was not the subject matter before the Supreme Court, he said.
When the appeal came up for hearing, Nalini's counsel argued that her plea did not fall under Section 435 of the CrPC and it was under Article 161.
Hence there was no need for consultation, he added.
He also submitted that when the state government had released 2,200 prisoners under the 1994 scheme it had kept Nalini away from the above, which was discriminatory.
Stating that she has been in prison for 26 years, her counsel further submitted that the power under Article 161 of the Constitution is untouchable by the courts including the Supreme Court, he added.
On his part, Tamil Nadu Advocate-General Vijay Narayan submitted that the present issue was completely covered by the judgement of the Supreme Court in the case of the petitioner herself.
The state government decided to release Nalini.
But the central government challenged it in the Supreme Court on the ground that the state government cannot decide on its own without getting concurrence from the Centre since the case was investigated by the central agency, he submitted.
The apex court passed an interim order against the state government and it is still pending, the AG said.
Therefore, the state government cannot act on her representation now, he added.
The AG said the apex court in its order clarified that the president and governors in exercise of their powers under Articles 72 and 161 of the Constitution were not prevented from doing so, however, the court has made it clear that its order shall not be applicable to Nalini.
From the order of the Supreme Court it is very clear that the interim order permitting the state governments to examine the power of remission shall not be applicable to the accused in the Rajiv Gandhi assassination case including Nalini, the AG submitted.
Nalini has been lodged in a special prison for women at Vellore for more than 26 years since her arrest in connection with the assassination of former prime minister Rajiv Gandhi at Sriperumbudur by an LTTE suicide bomber on May 21, 1991.