The detention of Nalini cannot be declared as illegal merely based on the cabinet advice
The Madras High Court on Wednesday dismissed a petition by Nalini, a life convict in the Rajiv Gandhi assassination case, seeking premature release based on a Tamil Nadu cabinet decision, holding that the state governor's consent was mandatory to give effect to it.
The Honourable Supreme Court has held that under Article 161 of the Constitution of India, the Governor is bound by the advice of the Council of Ministers, but yet, it is obligatory that the signature of the Governor is mandatory to authorise the pardon, commutation or release, the court said.
A bench comprising Justices R Subbaiah and Pongiappan rejected the arguments of counsel for Nalini that the Governor's approval was not necessary and the petitioner can be released on the basis of the advice given by the cabinet.
Nalini has filed the habeas corpus petition contending that since the Tamil Nadu Governor had failed to order her release based on the September 9, 2018 recommendation of the state cabinet, she was in illegal detention.
The court said though the cabinet had recommended pre-mature release of all the seven convicts, such advice had not been acted upon and was pending consideration of the Governor.
"The mere advice tendered by the Council of Minister will not entitle the petitioner to get released prematurely unless it was accepted or signed by the Governor," the bench said.
It made it clear that the detention of Nalini cannot be declared as illegal merely based on the cabinet advice.
The petitioner was incarcerated after due trial by the competent court of jurisdiction. The fundamental right or personal liberty guaranteed under Article 14 or 21 of the Constitution has not been infringed. "Therefore, we are of the view that the Habeas Corpus Petition itself is not maintainable," the court said.
The bench had on February 20 reserved its orders on the petition. All the seven were convicted by a special TADA court for their role in the assassination of former prime minister Rajiv Gandhi on May 21, 1991 by an LTTE suicide bomber during an election rally at nearby Sriperumbudur.
They were sentenced to death, but later it was commuted to life imprisonment.
Besides Nalini, the other life convicts are her husband Murugan, AG Perarivalan, Santhan, Jayakumar, Ravichandran and Robert Pyas.