Rajiv Gandhi Assassination convict Nalini challenges Section 435 CrPC in Madras HC

The First Bench of the Madras High Court has issued notice in a writ petition challenging the constitutionality of Section 435 (1) of the Criminal Code of Procedure (CrPC), 1973, preferred by S Nalini, one of the convicts in the Rajiv Gandhi assassination case..The matter was heard by the Bench of Chief Justice Indira Banerjee and Justice Abdul Quddhose..The immediate catalysis for the challenge stems from a Government Order issued by the Tamil Nadu government dated February 1, 2018. This GO provides a scheme for the premature release of life convicts. However, as expressly provided in the GO, the benefit of the scheme does not flow to those prisoners falling within the purview of Section 435 of the CrPC..As Nalini’s case was investigated by the CBI, she also falls within the purview of this provision. Aggrieved by the fact that she has been denied the benefit of the scheme on this ground alone, Nalini has challenged the same on two broad grounds..Firstly, Section 435 itself has been challenged as violative of Articles 14 and 21 of the Constitution. Section 435, inter alia, provides that the state government is obligated to consult the Central government before it commutes or remits the sentence of prisoners, where the offence had been investigated by central agencies such as the CBI..The petitioner contends that by the impugned provision, a single class of life convicts is treated differently. Moreover, the provision has no rational nexus with the object of premature release i.e. reformation and rehabilitation of prisoners. The petition states,.“When the object of premature release is reformation and rehabilitation of prisoners, and when the life convicts are released prematurely only on the basis of good conduct in prison, and when such good conduct can be assessed only by the concerned State governments, requiring the State to consult the Central Government in respect of those life convicts, whose offences were investigated by the CBI, would be irrational..What is looked into by the state governments at the time of consideration of life convicts for their premature release is not how their offences were investigated and who had investigated their offences, but whether the life convicts after serving a number of years of imprisonment were fit to join the mainstream of the society to lead their normal life….…Once they are confined in a prison, all the life convicts are required to be treated equally. There cannot be two different treatments for a single class of life convicts viz. one, for those whose offences were investigated by the CBI and the other, for those whose offences were investigated by the state police….”.Hence, Section 435 of the CrPC has been challenged as being arbitrary, unfair, unreasonable and violative of Articles 14 and 21 of the Constitution. .Secondly, it has been contended that the Tamil Nadu government was not obligated to relinquish its sovereign powers under Article 161 of the Constitution by excluding prisoners falling under Section 435. The petitioner argues that consultation with the Centre, in terms of Section 435, is only required where the state government seeks to exercise its powers under Sections 432 and 433 of the CrPC. The same is not required in the exercise of its sovereign powers under Article 161..“The respondent-state of Tamil Nadu has not applied its mind to the fact that the provisions of Section 435 (1) (1) would apply only when the respondent-State of Tamil Nadu exercises its powers under Section 432 and 433 CrPC. When the respondent-State of Tamil Nadu has exercised its sovereign power under Article 161 of the Constitution and issued the said G.O., Section 435 (1) (a) CrPC would not at all be applicable to the Scheme of Premature Release of Life Convicts.”.Nalini, who has now undergone over 26 years of imprisonment since the commutation of her death sentence in 2000, had approached the Supreme Court previously with a similar prayer..In July 2014, a Bench of then Chief Justice RM Lodha and Justices Kurian Joseph and Rohinton Fali Nariman had issued notice in the case. However, Nalini’s petition was ultimately dismissed in October by a Bench comprising of Chief Justice HL Dattu and Justices Madan B Lokur and AK Sikri..As noted in the petition, the Bench made the dismissal by merely stating,.“We decline to entertain the Writ Petition“..Therefore, the petition points out that the constitutionality of Section 435 (1) (a) of the Code of Criminal Procedure, 1973 was not decided by the Supreme Court..Following the latest GO for premature release, Section 435 of the CrPC is the primary impediment to Nalini’s release from prison. The matter has been posted to be taken up next in four weeks..Image taken from here..Read Petition: