Court order may pave way for other convicts’ release: Experts

The SC order on Wednesday to release AG Perarivalan, a convict serving life imprisonment in connection with the assassination of former Prime Minister Rajiv Gandhi, could pave way for release of other convicts in the assassination case, legal experts said.

The Supreme Court’s order on Wednesday to release AG Perarivalan, a convict serving life imprisonment in connection with the assassination of former Prime Minister Rajiv Gandhi, could pave way for release of other convicts in the assassination case, legal experts said.

AG Perarivalan, a convict in the Rajiv Gandhi assassination case, plays a musical instrument to celebrate the SC verdict outside his house in Jolarpet, Tirupattur district of Tamil Nadu, on Wednesday. (PTI)

The Tamil Nadu government in a statement said it will consult legal experts on the release of the remaining six convicts after going through the Supreme Court verdict. “We would be looking for legal options,” said Tamil Nadu chief minister M K Stalin, when asked about release of remaining six convicts in the case.

A bench of Justices L Nageswara Rao and BR Gavai said that the state cabinet’s decision is always binding the Governor on the issue of state subjects.

All the remaining six convicts have filed remission petitions with the governor through the state government and of them, only Nalini has filed a petition in the Madras high court seeking her release.

It added that the Tamil Nadu Governor was bound by the aid and advice given by the Tamil Nadu Council of Ministers under Article 161 of the Constitution and the decision of the governor referring the decision to President had no Constitutional backing. The court discarded the Centre’s argument that the president exclusively has the power to grant pardon in a case under section 302 the Indian Penal Code, saying this would render article 161 (power of governor to grant pardon) functionless.

Following the SC order, the other convicts may have to move the Madras high court to seek relief citing the Supreme Court order which said that the governor has to act on aid and advice of the council of ministers in case of remission decisions.

In February 2020, the Tamil Nadu government informed the Madras high court that the state government recommended release of all seven life convicts in the case to the governor.

The submission was in response to a plea filed by life convict in the case, Nalini Sriharan, who had claimed that her detention was illegal since the governor failed to order her release based on the September 2, 2018, recommendation of the state government.

Later, the governorinformed the Madras high court that the proposal had been forwarded to President for consideration stating that only President can grant remission in murder cases. The SC on Tuesday said the governor’s view has no constitutional backing, paving the way for release of other convicts.

Nalini, her husband Murugan, Santhan, Ravichandran, Jayakumar, and Robert Pyas are the other convicts in the case. The death sentence of all six except Nalini was commuted to life by the Supreme Court in 2014 – the release of all seven was recommended by the Tamil Nadu cabinet in 2018.

Following Perarivalan’s release granted by the SC, M Radhakrishnan, who represents Nalini in the court, said that he will move the Madras High Court seeking her release.

“The findings in the Perarivalan verdict will be binding on all High Courts. While the SC has used Article 142, the High Courts can invoke Article 226. The release has been granted on the grounds of unexplained and inordinate delay,” he said.

Nalini has already moved the Madras high court seeking her release from jail after SC granted bail to Perarivalan in March. The court had asked the government lawyer to find out whether the governor had forwarded the Cabinet proposal to release all convicts or only some of them. MA Muthalakan, president of South Chennai Central District Congress Committee, has also moved the high court opposing a bail petition filed by Nalini.

Constitutional expert, retired justice K Chandru said the fate of the remaining six depends on the basis of our penology. “If you say it is reformative and not retributive then one set of circumstances will follow. If you say it is retributive then you’re going against even Mahatma Gandhi’s stand that an eye for an eye makes the whole world go blind,” he said. “Consistently courts have said that a barbaric offence need not be met with a barbaric punishment.”