The Madras High Court on Monday reserved orders on writ petitions filed by former Prime Minister Rajiv Gandhi assassination case convicts S. Nalini and R.P. Ravichandran to release them without waiting anymore for the Governor’s consent to a 2018 Cabinet recommendation to release all seven convicts involved in the case.
Chief Justice Munishwar Nath Bhandari and Justice N. Mala deferred their verdict after hearing Advocate General R. Shunmugasundaram for the State and the advocates representing the two petitioners. The A-G told the court that the State might not be able to release the convicts without the Governor’s signature.
During the course of arguments, the Chief Justice wondered how far the recent judgement of the Supreme Court ordering the release of co-convict A.G. Perarivalan would be of use to the present petitioners since that order had been passed by invoking the exclusive jurisdiction of the apex court under Article 142 of the Constitution.
While invoking such power, the Supreme Court had taken into consideration the individual conduct of Perarivalan in prison, the educational qualifications that he had obtained during incarceration and his medical complications that he was suffering from. Such power under Article 142 was not available to the High Courts, the CJ pointed out.
However, Nalini’s counsel M. Radhakrishnan replied that the Supreme Court had given three findings in the Perarivalan case. First was that the advice of the State Cabinet was binding upon the Governor as held by the court in a catena of decisions including the famous Constitutional Bench verdict in Maru Ram versus Union of India in 1980.
Secondly, the Supreme Court had held that Governor’s non exercise of the power to pardon under Article 161 of the Constitution or the inexplicable delay in exercise of such power, not attributable to the prisoner, would be subject to judicial review especially when the State Cabinet had taken a decision to release a prisoner and made a recommendation.
Lastly, the court had held that the Tamil Nadu Governor ought not to have referred to the President, the Cabinet recommendation made on September 9, 2018 to release all seven convicts in the Rajiv Gandhi assassination case. The Supreme Court said, such reference was “without any constitutional backing and inimical to the scheme of our Constitution.”
Therefore, taking a cue from these three findings, the High Court could very well exercise its powers under Article 226 (writ jurisdiction) to order the release of the three petitioners. The power under Article 226 was much wider than Article 142 which empowers the Supreme Court to pass any order to do complete justice in a matter pending before it, he argued.
The counsel also pointed out that the Supreme Court in Maru Ram’s case had observed that the action of commutation and release could be pursuant to a governmental decision and the order could be issued even without the Governor's approval. Therefore, he sought for a direction to the government to release the petitioners in the light of such observation.
On the other hand, the A-G said, the observation in Maru Ram’s case came with a rider that thought the government could order release without Governor’s approval, under the Rules of Business and as a matter of Constitutional courtesy, it was “obligatory” that the signature of the Governor should authorise the pardon, commutation or release.
Therefore, though Nalini’s case could certainly be considered for premature release by taking into consideration that she was a woman under incarceration for last 31 years, the Governor’s signature would be a sine qua non, he said.
