The Madras High Court on Friday dismissed the writ petitions filed by S. Nalini and R.P. Ravichandran, the life convicts in the former Prime Minister Rajiv Gandhi assassination case, seeking a direction to the Tamil Nadu government to release them forthwith without waiting anymore for the Governor’s nod to a September 9, 2018 Cabinet recommendation.
Chief Justice Munishwar Nath Bhandari and Justice N. Mala concurred with Advocate-General R. Shunmugasundaram that the Governor’s signature was sine qua non under Article 161 of the Constitution and that the Supreme Court, too, in the famous Maru Ram’s case (1980) had held that it was “obligatory” to obtain his/her signature.
“If the argument of learned counsel for the petitioners 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 of India redundant qua [with respect to] the power of the Governor,” the Bench wrote.
It went on to state, “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... Therefore, Article 161 of the Constitution has to be read as it stands without omitting the word — Governor.”
Further, stressing that it was not as if the Governor had no discretion whatsoever with respect to Cabinet recommendations, the Bench said the Supreme Court in the Madhya Pradesh Special Police Establishment case (2004) had held that the President or the Governor should generally act upon the advice of the Cabinet but for a few exceptional situations.
“There are exceptions under which the Governor can act in his own discretion. Some of the exceptions are as set out hereinabove. It is, however, clarified that the exceptions mentioned in the judgment are not exhaustive. It is also recognised that the concept of the Governor acting in his discretion or exercising independent judgement is not alien to the Constitution,” the Supreme Court had said in the 2004 verdict.
Since not only the former Prime Minister but also 15 others, including nine police personnel, had died when human bomb Dhanu exploded herself at Sriperumbudur near Chennai on May 21, 1991, “the issue aforesaid can be taken into consideration by the Governor to determine whether the Council of Ministers was erroneous to recommend grant of remission of sentence,” the Bench observed.
Though M. Radhakrishnan, counsel for Nalini, relied upon certain dicta laid down by the Supreme Court while releasing co-convict A.G. Perarivalan recently, the Bench pointed out that the Supreme Court had ordered his release by exercising the extraordinary powers conferred on it under Article 142 (power to issue any direction to do complete justice in a matter pending before it) of the Constitution.
The High Courts had not been conferred with such powers, the Bench said, adding that at present, the Cabinet recommendation was not pending with the Governor since the latter had forwarded it to the President in January 2021 on the ground that certain offences for which the petitioners had been convicted fell within the executive power of the Union.
“We hold that if the matter does not fall under Article 72 (President’s power to grant pardon) of the Constitution, the Governor is bound by the recommendation of the Council of Ministers, though his formal authorisation would be required as otherwise observed by the apex court in the case of Maru Ram,” the Bench concluded.
