The Tamil Nadu government on Wednesday informed the Madras High Court that the state has recommended the release of all seven life convicts of Rajiv Gandhi assassination case to the Governor as it lacks the power to order such remission.
"The state cabinet has only made a recommendation to the governor. Only the governor has the power to take a decision. The Governor cannot be questioned by the state for not acting on its recommendation," public prosecutor A Natarajan said.
The public prosecutor made the submission on a plea by a life convict Nalini Sriharan, seeking to declare her detention as illegal since the Governor had failed to order her release based on the September 9, 2018 recommendation of the state cabinet.
When the Habeas Corpus Petition came up for hearing before a division bench, comprising Justices R Subbiah and R Pongiappan, the court directed the public prosecutor to file a reply by February 18 on whether Nalini's incarceration after the state's recommendation for release would amount to illegal detention.
The petitioner submitted that as per the Supreme Court judgement in the Maru Ram case, the advice of the state government under Article 161 of the Constitution is binding on the Governor.
She contended that as the power under Article 161 (power of the Governor to grant pardons and suspend, remit or commute sentences in certain cases), has already been exercised by Tamil Nadu, the Governor has no discretion, but to act on the advice of the council of ministers.
Since she has not been released as per the advice of the council of ministers, the continuous detention was illegal and a violation of Article 14 and 21 of the Constitution, she claimed.
Nalini is the longest serving prisoner of the country after having been behind the bars for over 27 years.
Besides Nalini, the other life convicts are her husband Murugan, AG Perarivalan, Santhan, Jayakumar, Ravichandran and Robert Pyas.
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 during an election rally at nearby Sriperumbudur and sentenced to death, but later it was commuted to life imprisonment.