On November 11, the Supreme Court ordered for the immediate release of six convicts who are serving life sentence for more than three decades in the Rajiv Gandhi assassination case. They are: Nalini, Ravichandran, Jayakumar, Suthenthiraraja @ Santhan, Murugan and Robert Pius.
A bench of Justices B. R. Gavai and B. V. Nagarathna noted that the state concerned, Tamil Nadu’s State Cabinet had recommended their release in a communication to the Governor in September 2018. The Governor then, instead of taking a call, had passed on their files to the Centre. The Governor was bound by the advice of the Cabinet in cases of murder as their convictions under the now-lapsed Terrorism and Disruptive Activities (Prevention) Act had been aside by the apex court.
On May 18, in in exercise of its extraordinary powers under Article 142 of the Constitution, the SC had granted premature release to the former co-convict, A Perarivalan. The present order relies on this ruling of May 18, 2022 that had concluded that the State of Tamil Nadu, and not the Union, had exclusive power to recommend remission in the case. n in the case.
Shortly after the release of Perarivalan, Nalini and Ravichandran had approached the apex court for parity. The other four convicts had joined in by filing separate applications in the Supreme Court.
Ordering them to be “set at liberty forthwith”, Justices Gavai and Nagarathna also took into account the fact that each of the six convicts had individually exhibited satisfactory conduct during their 3 decade long incarceration. They had earned postgraduate degrees and diplomas while serving their sentence. Santhan had published poems and articles and won awards in France and Germany. In Nalini’s case, the court said she was a woman and had already spent more than 30 years in incarceration.
A recent affidavit filed by Tamil Nadu, represented by advocate Joseph S. Aristotle, had agreed with the petitioners when it said the State Governor was bound by the advice of the State Cabinet, proposing the premature release of convicts Nalini and others in September 2018.
The State had contended that the Governor, instead of acting on the recommendation of the Cabinet to remit their life sentence, had kept the files pending for over two and half years before finally forwarding it to the President in January 2021.
The State said the President had also not taken a decision for the past one year and nine months. It said Nalini has been incarcerated in the Special Prison for Women, Vellore, for the past 30 years, four months and 25 days.
The Madras High Court had in June dismissed the writ petitions filed by Nalini and co-accused Ravichandran, who had sought a direction to the Tamil Nadu government to release them forthwith without waiting anymore for the Governor’s nod to a September 9, 2018 Cabinet recommendation. Holding that the Governor’s signature was sine qua non under Article 161 of the Constitution, the High Court had also observed that it could not exercise extraordinary powers under Article 142 to pass an Order similar to the one which released Perarivalan.
In its judgment in the Perarivalan case in May, the apex court had held that the State Cabinet’s advice was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution. The Governor had no business forwarding the pardon pleas to the President after sitting on it for years together.
“The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the Governor’s power to refer a recommendation made by the State Cabinet to the President of India. In the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President. Such action is contrary to the constitutional scheme,” the Supreme Court had held.
It said the Governor’s delay to decide Perarivalan’s pardon for over two years compelled the court to employ its constitutional powers under Article 142 to do justice to him.