Nalini keen on exploring legal avenues: Lawyer

Nalini now plans to approach the Madras high court to direct the state government to consider her representation for premature release under the Scheme of Premature Release of Life Convicts, who had completed 20 years of actual imprisonment.

Her counsel M. Radhakrishnan met Nalini in Vellore prison Saturday and explained to her the legal remedy still available to her. She gave her consent to file a petition in the Madras high court on Monday.

When contacted, Radhakrishnan told this correspondent that Nalini became eligible to be considered for premature release under the General Amnesty Scheme as early as in 2001. The only obstacle in her way was a clause in the scheme of premature release of life convicts framed by the Tamil Nadu government under Article 161 of the Constitution excluding all those life convicts whose offences were investigated by the CBI.

In 2006, Nalini challenged the said clause in the Madras high court on the ground that it violated her fundamental right under Article 14 and 21 of the Constitution. A single judge and a division bench were negative on the same. She filed a review petition mainly on the ground that just because CBI investigated the case, she cannot be treated in discriminatory manner and she should be treated on par with other life convicts whose offences were investigated by the state police. Her review petition was still pending before the Madras high court, Radhakrishnan added.

He said that on February 19, 2014, the Tamil Nadu government decided to release all the life convicts involved in the Rajiv Gandhi assassination case including Nalini. But, it was stayed by the Supreme Court. A three-judge Bench referred certain questions to the Constitution Bench. On December 2, 2015, the Constitution bench held inter alia that the state governments can exercise their powers of remission under section 432 and 433 Cr.P.C in respect of those convicts whose offences were investigated by the CBI only with the concurrence of the central government.

Since the Tamil Nadu government has not followed the procedure contemplated under the Cr. P.C, the proposal of the government would be without jurisdiction.

However, the Constitution bench has, in its judgment, categorically held “As has been stated by this court in Maru Ram by the Constitution Bench, that the constitutional power of remission provided under Articles 72 and 161 of the Constitution will always remain untouched, in as much as, though the statutory power of remission etc., as compared to Constitution power under Articles 72 and 161 looks similar, they are not the same. Therefore, we confine ourselves to the implication of statutory power of remission etc., provided under the criminal procedure code….”. Thus, the Constitution bench judgment will not in any way affect the sovereign power of the state governments under Article 161 of the Constitution.

The Tamil Nadu government was at liberty to release the life convicts under Article 161 of the Constitution under the existing schemes of premature release viz General Amnesty Scheme without any restriction of particular years of imprisonment, Advisory Scheme (14 years imprisonment) and completion of 20 years of imprisonment scheme whatever may be the offences, Radhakrishnan added.

He said the Tamil Nadu government framed a scheme of premature release of life convicts dated November 10, 1994 for the purpose of release of the life convicts who had completed 20 years of actual imprisonment on humanitarian grounds under Article 161 of the Constitution. Under the said scheme, some of the life convicts who had completed 20 years of actual imprisonment were and are being released by the state government. Therefore, Nalini made a representation on February 22, 2014 to the state government requesting it to consider her for premature release under this Scheme.

“Since Nalini’s representation is pending and since the Constitution bench has not even touched the scope of Article 161 of the Constitution, she will be filing a petition in the Madras high court to direct the state government to consider her representation for premature release. Nalini has already suffered more than 24 years of imprisonment and it is the policy of the Tamil Nadu government not to keep any life convict in prison beyond the period of 20 years,” he added.