Chennai: The Madras high court has dismissed a petition filed by S.Nalini, serving life sentence in Vellore Prison for her involvement in Rajiv Gandhi assassination case, which sought a direction to the state government to implement its decision to release her from prison immediately.
Dismissing the petition, a division bench comprising Justices R.Subbiah and C.Saravanan said, “It is trite that a writ of mandamus can be issued only if the authorities failed to discharge their duties. In the present case, as the Council of Ministers had already recommended for the premature release of the petitioner and other co-accused even as early as on September 9, 2018, which was also referred to by the petitioner in her representation dated February 13, 2019, we are not inclined to issue any direction to the authorities in this case”.
M.Radhakrishnan, counsel for the petitioner submitted that the Council of Ministers have advised the Governor of the State to release the petitioner and six other life convicts involved in the assassination of former Prime Minister of the Country Rajiv Gandhi, prematurely. Such advice given by Council of Ministers binds the Governor. In spite of such advice, for more than ten months, the Governor did not consider the advice given to release the petitioner and others. Even though the representation of the petitioner has been received by the state government, till date, no order has been passed and the delay in passing an order warrants issuance of a mandamus by this court, he added.
State Public Prosecutor A.Natarajan, assisted by Government Advocate M.M.Mohammed Muzammil, submitted that even though the petitioner had completed 20 years of actual imprisonment, the provisions under which she was convicted was not coming within the purview of G.O dated July 20, 1987 and therefore, she was not entitled for premature release.
The petitioner, along with other co-accused, have filed a petition before the Supreme Court and in the order dated September 6, 2018, it was observed that the authorities concerned were at liberty to decide the application seeking premature release of the petitioner as deemed fit.
On the basis of such direction, a proposal for premature release of the petitioner and others was sent to the Governor and the same was under consideration. Therefore, a mandamus need not be issued, he added.
The bench said the petitioner herself admits that the government had taken a decision to release her and other co-accused and a recommendation has also been sent to the Governor. “When such a decision was taken by the Council of Ministers in exercise of the powers conferred under Article 161 of the Constitution of India, we do not find any reason to issue any further direction to the state”, the bench added.
The bench said the fact that the claim of the petitioner and others for premature release has been considered by the Council of Ministers by taking a decision and a recommendation has been forwarded to the Governor of the state would only dis-entitle the petitioner to seek a mandamus to the state government.
