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Rajiv Gandhi Assassination Case: Madras High Court Asks If Governor Sent Files Of All Convicts To President Or Perarivalan's Alone
Upasana Sajeev
31 March 2022 8:58 AM IST
The Madras High Court on Wednesday directed the Tamil Nadu government to find whether recommendations to release all the prisoners in Rajiv Gandhi Assassination case was forwarded by the Governor to the President or if it was AG Perarivalan's case alone that was referred.The court was considering the application filed by the petitioner S. Nalini, convicted for the assassination of former...
The Madras High Court on Wednesday directed the Tamil Nadu government to find whether recommendations to release all the prisoners in Rajiv Gandhi Assassination case was forwarded by the Governor to the President or if it was AG Perarivalan's case alone that was referred.
The court was considering the application filed by the petitioner S. Nalini, convicted for the assassination of former Prime Minister Rajiv Gandhi.
While hearing the matter, Mr. Radhakrishnan, counsel appearing for Nalini reiterated that the applicant was eligible for pre-release but the Governor had not acted upon the advice of the Council of Ministers even after 42 months.
Thus, declaration was sought to declare that failure of the Governor to act in accordance with the advise of the Council of Ministers was unconstitutional and to direct the state to release the Petitioner from prison without waiting approval from the Governor.
Radhakrishnan relied heavily on the judgement of Apex Court in Maru Ram v. Union of India AIR 1980 SC 2147. In this case, the apex court had observed as follows-
"The President is symbolic, the Central Government is the reality even as the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his council of ministers. The upshot is that the State Government, whether the Governor likes it or not, can advise and not under Article 161, the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even withhold the Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligation that the signature of the Governor should authorise the pardon, commutation or release. The position is substantially the same regarding the President. It is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice."
Therefore, the counsel contented that the signature of the Governor was merely a formality and the petitioner could be released even without the signature of the Governor.
The counsel further argued that though the President or Governor is not answerable to court under Article 361, this personal immunity does not bar any challenge to their actions when there is malafide. The Governor had on other occasions released 20 prisoners on recommendations from the Council of Ministers but chose not to do it in the present case.
The court however was not inclined to accept this contention and stated that the Governor's signature is essential and that if it were not particular, Section 161 should be rewritten.
Further, while dealing with the bail application, the court reiterated that it did not have powers such as the Supreme Court to grant bail to a convict when the law was silent in this regard. The court stated that the remedy of bail cannot be sought for in a writ petition before the High Court.
The court also discussed that the State should consider formulating Parole Rules which is different from Tamil Nadu Suspension of Sentence Rules 1982. In such Parole rules a convict can be granted parole after a certain period of time for his good conduct on the condition that he shall maintain such conduct. It highlighted that such rules existed in the state of Rajasthan.
The matter shall be taken up after a week for the response of the State.
Case Title: S. Nalini v. State of Tamil Nadu and Anr
Case No: WP 7615/2022
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