The Madras high court on Friday held that the writ plea of Nalini Sriharan, one of the seven convicts in the Rajiv Gandhi assassination case and serving life term (presently on parole), to order her premature release even without the consent of the Tamil Nadu governor is not maintainable.
The plea was not maintainable as the previous ones -- two writ petitions and the last one a habeas corpus petition, all on the same issue -- had been dismissed on various occasions. Her prayer for release by the government on its own pursuant to the recommendation of the council of ministers cannot thus be directed. The release cannot be directed even by the court in the absence of the acceptance of the resolution by the governor. The recommendation of the council of ministers has otherwise been sent to the President.
“Thus, for the reasons aforesaid, the directions sought by the petitioner cannot be given by the court, as it otherwise does not have power similar to what the Apex Court has under Article 142 of the Constitution. For the foregoing reasons, the writ petition is dismissed as not maintainable,” the first bench of Chief Justice M N Bhandari and Justice N Mala said.
The bench was dismissing Nalini’s petition seeking to declare that the failure of the state Governor to act in accordance with the advice of the State Council of Ministers dated September 9, 2018 under Article 161 of the Constitution recommending the release of the petitioner from prison is unconstitutional and consequently direct the Home Secretary to release her immediately without the approval of the Governor. The previous AIADMK cabinet had adopted a resolution in 2018, recommending to the then governor Banwarilal Purohit, the release of the seven--- Murugan, Santhan, A G Perarivalan (since released by the Supreme Court last month), Robert Payas, Ravichandran, Jayakumar and Nalini. In their 53 pages judgment, the judges observed that it is no doubt true that the Apex Court made observation about the powers of the Governor and the President under Articles 161 and 72, respectively, but it is with a clarity that as a constitutional courtesy the signature of the Governor would be required in a case falling under Article 161 of the Constitution. In view of the aforesaid, mere recommendation of the Council of Ministers would not mean that the government is competent to release the accused without its authorisation by the Governor. If the argument of Nalini’s counsel that a mere recommendation of the Council of Ministers to grant remission is sufficient and authorisation of the Governor is not required is accepted, then virtually the court would be declaring Article 161 of the Constitution redundant qua the power of the Governor. It may be true that the Governor of the State is bound by the recommendation of the Council of Ministers, but it would not mean that the formal acceptance as per the constitutional courtesy would not be required, the judges said.
{{/usCountry}}The bench was dismissing Nalini’s petition seeking to declare that the failure of the state Governor to act in accordance with the advice of the State Council of Ministers dated September 9, 2018 under Article 161 of the Constitution recommending the release of the petitioner from prison is unconstitutional and consequently direct the Home Secretary to release her immediately without the approval of the Governor. The previous AIADMK cabinet had adopted a resolution in 2018, recommending to the then governor Banwarilal Purohit, the release of the seven--- Murugan, Santhan, A G Perarivalan (since released by the Supreme Court last month), Robert Payas, Ravichandran, Jayakumar and Nalini. In their 53 pages judgment, the judges observed that it is no doubt true that the Apex Court made observation about the powers of the Governor and the President under Articles 161 and 72, respectively, but it is with a clarity that as a constitutional courtesy the signature of the Governor would be required in a case falling under Article 161 of the Constitution. In view of the aforesaid, mere recommendation of the Council of Ministers would not mean that the government is competent to release the accused without its authorisation by the Governor. If the argument of Nalini’s counsel that a mere recommendation of the Council of Ministers to grant remission is sufficient and authorisation of the Governor is not required is accepted, then virtually the court would be declaring Article 161 of the Constitution redundant qua the power of the Governor. It may be true that the Governor of the State is bound by the recommendation of the Council of Ministers, but it would not mean that the formal acceptance as per the constitutional courtesy would not be required, the judges said.
{{/usCountry}}The bench added that the argument raised by counsel is to be viewed from another angle also. If the resolution of the Council of Ministers itself is sufficient for the release of the accused without the authorisation of the Governor, then the word “Governor” occurring in Article 161 is required to be omitted and otherwise it is settled law that the court cannot alter a provision of law and in this case a constitutional provision. “Therefore, Article 161 of the Constitution has to be read as it stands without omitting the word “Governor”. It cannot be held that since the Governor of the State is bound by the recommendation of the Council of Ministers, his acceptance is not required if there is a delay. We are, therefore, unable to accept the contention of the counsel on the issue,” the bench said.
The judges added that this view is substantiated from the fact that even the Apex Court in Perarivalan case has not ordered for his release holding that without the signature of the Governor to accept the resolution, a direction can be given by the High Court. Rather, to order for release, the Apex Court invoked its power under Article 142 of the Constitution. This power can be exercised only by the Apex Court and no such power exists with the High Court. This goes to the root of the case to hold that without the signature of the Governor to authorise the resolution, this court cannot pass an order directing the State Government to release the accused. Otherwise the direction therein would not only offend Article 161 of the Constitution, but also Article 163 of the Constitution, the bench said.
In the instant case, the bench pointed out that Advocate-General R Shanmugsundaram has referred to the role played by the accused in the assassination of Rajiv Gandhi, where 15 other innocent persons, including nine police personnel, died. This issue can be taken into consideration by the Governor to determine whether the Council of Ministers was erroneous to recommend grant of remission of sentence to the accused, though the contest in regard to aforesaid was not made before the Apex Court in the case of Perarivalan. The SC observed that the argument raised by the Additional Solicitor General to justify the decision of the Governor to send the matter to the President of India cannot be accepted. It was held that the matter would fall under Article 161 of the Constitution for the reason that conviction of the accused is under Section 302 IPC (murder), the judges pointed out.
The bench also pointed out that this High Court had dismissed all the three petitions filed by Nalini with the same prayer on the same grounds earlier. A litigant cannot come out with repeated writ petitions for one and the same cause. Rather, if she was aggrieved by the earlier judgment, she could have preferred an appeal before the Supreme Court.
“Thus, for the reasons aforesaid, the directions sought by the petitioner cannot be given by the court, as it otherwise does not have power similar to what the Apex Court has under Article 142 of the Constitution. For the foregoing reasons, the writ petition is dismissed as not maintainable,” the bench said.
The bench also dismissed a similar writ plea from RP Ravichandran, another convict in the case, on the same grounds.