Pardoning Power- Article 161 Does Not Give Any Power To Council Of Ministers: Madras High Court

The counsel for the Petitioner Mr Radhakrishnan relied on Article 161 and stated that the convict was in prison for a really long time and should be considered for premature release. The counsel also submitted that on 09.09.2018 the Council of Ministers had advised the Governor under Article 161 to release the petitioner. He further stated that the Governor is bound by the advice of the Council of Ministers and he is cannot act adversely.

To this the bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy 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.

Mr Radhakrishnan had also relied on the decision of the Apex Court in Maru Ram v. Union of India AIR 1980 SC 2147 where the court had held that the advice of the Council of Ministers in binding on the Governor. The court also relied on the Supreme Court Decision in Arnab ManoranjanGoswami v The State of Maharashtra & Ors. Crl Appeal No. 743 of 2020 where while granting bail to Arnab Goswami, Justice D.Y Chandrachud had opined that whenever personal liberty is taken away due to State action, bail can be granted. He then reiterated that the petitioner had been in jail for long and even the Council of Ministers had advised for her release back in 2018 but still no orders have been made by the Governor.

The court then asked the petitioner if they wish to implead the governor. To this, the petitioners replied in the negative. The petitioner said that the Governor cannot be made a party to the proceeding. When the court further asked that it deemed proper that the Governor be made party wen allegations have been made against him, the petitioners replied that any point should be answered by the government.

Background

The petitioner was convicted and sentenced to death for the assassination of former Prime Minister Rajiv Gandhi by the trial court. On appeal, she was convicted and sentenced to death under Section 120B read with Section 302 of IPC. Subsequently her death sentence was commuted to imprisonment for life.

According to the petitioner, even though she became eligible for premature release way back in 2001 itself, she has still not been released. She also stated that her repeated representation were not considered by the government.

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

Yesterday, a Congress worker had moved the High Court seeking to implead him as the respondent in the petition.  

"The convicts were not just offenders of any other murder case but were to be construed as convicts of a murder conspiracy that had direct bearing on the Sovereignty, Security and Political Independence of India." He had stated in his petition

Case Title: S. Nalini v. The State of Tamil Nadu and Anr

Case No: WP 27936 of 2020(Filing No) and WP(MD) 16658 of 2020