Chennai: The Madras High Court dismissed as not maintainable a writ petition filed by S Nalini, a life convict in the former PM Rajiv Gandhi assassination case, seeking a direction to the Tamil Nadu Governor to “countersign” a state cabinet recommendation made in September 9 last year for premature release of her and other six convicts in the case. A division bench of Justices R. Subbiah and C. Saravanan upheld the objections raised by the high court registry for numbering the case and agreed with Advocate General Vijay Narayan that no direction as sought for by the convict could be issued to the Governor who had to exercise his power under Article 161 of the Constitution.
“Therefore, questioning the discharge of the act of a Governor or failure to discharge his constitutional obligations cannot be subjected to judicial review under Article 226 of the Constitution by arraying the Governor as a party to the writ proceedings,” the bench said.
The AG argued that the court could not even order notice to the Governor since he enjoyed complete immunity under Article 361 of the Constitution and he would not be answerable to any court for the exercise and performance of the powers and duties of his office. He pointed out that insofar as the present case was concerned, the Governor had to exercise his constitutional power under Article 161, which relates to granting pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence relating to a matter to which the executive power of the State extends.
When such was the case and when he was seized of the issue, courts could not compel the Governor to act in a particular fashion, the AG said. Nevertheless, accepting that the Governor had to act as per the aid and advice of the Council of Ministers while exercising his constitutional powers, the AG said no court of law could issue a writ of mandamus directing him to exercise his constitutional functions, especially when he was awaiting legal opinion before taking a final call on the matter.
Also, taking exception to the “peculiar” nature of the petitioner’s plea, the AG had said, “Petitioner wants a direction to the first respondent (Governor) to countersign a recommendation made by second respondent (State government). Where is the question of countersigning when the Governor has to exercise constitutional powers under Article 161?”
Rajiv Gandhi was assassinated by an LTTE suicide bomber on May 21, 1991, in Sriperumbudur near here during an election campaign. All seven are in jail since 1991. Nalini, her husband Murugan, Santhan, Perarivalan and four others are serving life sentences in the 1991 assassination of Rajiv Gandhi at the Vellore central prison. The Tamil Nadu Cabinet had in September 2018 passed a unanimous resolution urging the Governor to order the release of all seven convicts since they have served more than 28 years in prison.
Can't direct Governor to release Rajiv case convicts: Madras HC
Chennai: The Madras High Court on Thursday held as not maintainable a writ petition filed by former Prime Minister Rajiv Gandhi assassination case convict S. Nalini seeking a direction to the Governor to “countersign” a State Cabinet recommendation made in September 9 last year for premature release of all seven convicts in the case.
A Division Bench of Justices R. Subbiah and C. Saravanan upheld the objections raised by the High Court Registry for numbering the case and agreed with Advocate General (A-G) Vijay Narayan that no direction as sought for by the convict could be issued to the Governor who had to exercise his power under Article 161 of the Constitution.
During the course of arguments, the A-G argued that the court could not even order notice to the Governor since he enjoyed complete immunity under Article 361 of the Constitution and he would not be answerable to any court for the exercise and performance of the powers and duties of his office.
He pointed out that insofar as the present case was concerned, the Governor had to exercise his constitutional power under Article 161, which relates to granting pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence relating to a matter to which the executive power of the State extends.
When such was the case and when he was seized of the issue, courts could not compel the Governor to act in a particular fashion, the A-G said.
Nevertheless, accepting that the Governor had to act as per the aid and advice of the Council of Ministers while exercising his constitutional powers, the A-G said no court of law could issue a writ of mandamus directing him to exercise his constitutional functions, especially when he was awaiting legal opinion before taking a final call on the matter.
Also, taking exception to the “peculiar” nature of the petitioner’s prayer, the A-G had said, “Petitioner wants a direction to the first respondent (Governor) to countersign a recommendation made by second respondent (State government). Where is the question of countersigning when the Governor has to exercise constitutional powers under Article 161?”
