'Can't pass orders like SC': HC rejects Nalini's release plea

Nalini wanted the court to release her based on the state cabinet's resolution passed on September 9, 2018, in favour of the release of all the seven convicts in the case.
'Can't pass orders like SC': HC rejects Nalini's release plea
Nalini Sriharan, one of the seven convicts in the Rajiv Gandhi assassination casePTI

CHENNAI: In a major setback to Nalini Sriharan and RP Ravichandran, one of the seven life term convicts in former Prime Minister Rajiv Gandhi Assassination case, the Madras High Court on Friday rejected their petitions seeking their premature release without the nod of the Governor.

The first bench comprising Chief Justice Munishwar Nath Bhandari and Justice N Mala had passed the orders dismissing the prayers of Nalini and Ravichandran for their release by the State government on its own pursuant to the recommendation of the state council of ministers dated September 11, 2018.

“The release cannot be directed even by the court in the absence of the acceptance of the resolution by the governor of the state. The recommendation of the council of ministers has otherwise been sent to the President of India. The development aforesaid is during the pendency of the writ petition, ” the Chief Justice said in the orders.

The court also rejected their pleas on the ground that the directions sought by the petitioner cannot be given by the court, as it otherwise does not have power similar to what the Apex Court the Constitution of India has under Article 142.

Nalini’s counsel M Radhakrishnan relied on the order of a constitutional bench of the Supreme Court in the Maru Ram case submitting that Nalini could be released without the nod of the governor.

However, the HC rejected such contention saying that as a constitutional courtesy the signature of the Governor would be required in a case falling under Article 161 of the Constitution of India.

“If the argument of the petitioners that a mere recommendation of the Council of Ministers to grant remission is sufficient and authorisation of the Governor is not required is accepted, then virtually the court would be declaring Article 161 of the Constitution of India redundant with the power of the Governor, ” the bench ruled.

Advocate General R Shunmugasundaram submitted that the resolution of the council of ministers for remission of sentence was sent to the governor who is having the authority under Article 161 of the Constitution of India.

He further stated that the petitioner Nalini was convicted under several other sections apart from Section 302 of the IPC. “As the petitioner is a convict for the offences under different provisions of law, which includes the laws where the executive power extends to the Union of India and, therefore, the matter has rightly been sent to the President of India, where it is pending consideration” the AG argued.

Nalini’s counsel further referred to the judgement of Supreme Court ordering the release of the AG Perarivalan, a co-convict, by exercising its power conferred under Article 142 of the constitution.

However, the CJ MN Bhandari observed that with its exclusive power conferred under Article 142, the SC had released Perarivalan in order to render justice in a matter pending before it and the same powers are not conferred to the high courts.

The HC also pointed out that a division bench of the Madras HC had already dismissed a habeas corpus plea filed by the petitioner Nalini and she could not file pleas again and again for the same relief.

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