india

Updated: Jul 19, 2019 00:02 IST

The Madras high court on Thursday dismissed a petition filed by Nalini Sriharan, a life convict in the 1991 assassination of former prime minister Rajiv Gandhi, seeking a directive to the governor to accept a recommendation by the Tamil Nadu government for her premature release.

Based on a cabinet resolution, the Tamil Nadu government had in September 2018 recommended to governor Banwarilal Purohit the release of Nalini and six other convicts, whose death sentences were commuted to life imprisonment in 2000 under Article 161 of the Constitution.

Under Article 161, the governor of a state has the power to grant pardons, or remit or commute the sentence of any convict..

A division bench comprising justices R Subbaiah and C Saravanan on Thursday held that Article 361 of the Constitution insulated the governor from being questioned or made answerable before any court with respect to the discharge his official duties.

“The privilege and immunity conferred on the governor under Article 361 is a clear bar on the petitioner to file the present petition. The governor cannot be equated with the instrumentalities of Article 12 of the Constitution [state and its definition], who are amenable to the jurisdiction of the court through writ petition,” the bench said dismissing the petition as “not maintainable”.

Incarcerated for more than 27 years, Nalini is the longest serving woman convict in the country. She had moved the high court seeking a directive to the governor to act on the advice of the council of ministers.

She also argued that the delay on the part of governor Purohit to act on the recommendation amounted to contempt of a Supreme Court order, according to which the governor is bound by the aid and advice of the council of ministers.

Besides the ruling All India Anna Dravida Munnetra Kazhagam (AIADMK), the opposition Dravida Munnetra Kazhagam has also demanded the release of the convicts.

Appearing for Nalini, advocate M Radhakrishna said, “The petitioner suffers illegal detention every day since the advice of the state {is} to release her.”

The state advocate general took exception to the petitioner seeking a directive to the governor to “countersign” the recommendation of the state government. He said the governor enjoys complete immunity under Article 361 (1) of the Constitution and so no directive can be issued to him.

“Even while accepting that the governor had to act as per the aid and advice of the council of ministers, no court could issue a writ of mandamus [a judicial remedy in the form of an order from a court] to the governor directing him in the exercise of his constitutional functions, that too when he has to ascertain legal opinion on taking a call,” he said.

The high court had on July 5 granted Nalini one month’s parole, enabling her to make arrangements for the marriage of her daughter, Harithra, who is in the UK.

Former PM Rajiv Gandhi was assassinated by a Liberation Tigers of Tamil Eelam (LTTE) suicide bomber during an election rally at Sriperumpudur near Chennai on May 21, 1991. Besides Nalini Sriharan, her husband Murugan, Santhan, Perarivalan, Jayakumar, Ravichandran and Robert Payas were convicted and sentenced for life in the case.