'Don't Have Special Powers Like SC U/Art 142': Madras HC Refuses Premature Release Of Convicts Nalini & Ravichandran In Rajiv Gandhi Assassination Case

The bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala observed that the High Court did not have special powers that the Supreme Court has under Article 142 of the Constitution. Thus, it cannot order their release, like the Supreme Court did for Perarivalan, another convict in the assassination case. Hence the petition was dismissed as not maintainable.

Nalini and Ravichandran had moved the Madras High court seeking their premature release. The petition sought for declaring that the action of the Governor who failed to act in accordance with the recommendations of the council of ministers was unconstitutional. The petition also sought direction to the state to release the petitioner from prison immediately without the approval of the Governor of Tamil Nadu.

The petitioner stated that even though she became eligible for premature release way back in 2001 itself, she has still not been released. She stated that the repeated representations were not considered by the respondents. Later on 09.09.2018, the Council of Ministers of Tamil Nadu had advised the Governor under Article 161 of the Constitution to release the petitioner.

However, the Governor has still not acted upon this advice even though he is bound by the advice of the State Government as held by the Supreme Court in Maru Ram v. Union of India AIR 1980 SC 2147.

On the other hand, the state submitted that even though governor had not authorised the remission, it could not be construed that the court could pass orders for release or that the state itself could release the convicts. It was further contended that though the Governor was bound by the decision of the Council of Ministers, it was obligatory to get his signature for release of the convicts as he was the constitutional head of the state.

The court observed that when a matter did not fall within the ambit of Article 72 i.e, wherever the pardoning power was not with the President, the Governor was bound by the decision of the Council of Ministers and his formal authorisation was also necessary.

The court had previously observed that Article 161 does not provide for binding the decision of the Council of Ministers. The bench further stated that the Ministers have not been given any power.

The court had also observed that the powers of the Supreme Court under Article 142 could not be compared to the powers of the High Court under Article 226 and suggested that if the petitioner was seeking a release on the basis of the recent Supreme Court order releasing Perarivalan, the petitioner could move the Supreme Court.

The court had previously disinclined from hearing the bail application citing that there was no legal provision for a convict to seek bail. the court had asked the petitioner to first establish that a bail application was maintainable after which the court shall hear the bail application