Governor forwarded Rajiv case convicts’ premature release files to President on Jan 27, 2021, T.N. govt. tells HC

Nalini’s counsel contends that Governor had no authority to refer the matter to the President

The State government on Thursday informed the Madras High Court that the Governor, on January 27, 2021, forwarded to the President all files related to the plea for premature release of seven convicts involved in the 1991 assassination of former Prime Minister Rajiv Gandhi.

Appearing before Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy, Advocate General R. Shunmugasundaram said the Home Secretary had obtained information from the Governor’s secretariat, since the court wanted to know the exact date.

It was during the course of hearing a writ petition filed by one of the convicts S. Nalini, seeking a direction to the government to release her without waiting anymore for the Governor’s nod, the court was informed that the Governor had referred the issue to the President.

Taking strong exception to such a course adopted by the Governor, the petitioner’s counsel M. Radhakrishnan recalled that the State Cabinet, on September 9, 2018, recommended the release of all seven convicts and forwarded the recommendation to the Governor.

While exercising powers under Article 161 of the Constitution, the Governor could either accept the recommendation or return it for reconsideration. There was no scope for referring the matter to the President, whose powers to grant pardon lie under Article 72 of the Constitution, the counsel argued.

Further, citing the Supreme Court verdict in Maru Ram versus Union of India (1980), Mr. Radhakrishnan said the court had held that the Governor’s nod to the Cabinet recommendation was only a “constitutional courtesy” and that the advice of the council of ministers was binding upon him/her.

“Therefore, the Governor has been committing contempt of court every day since the Cabinet recommendation was made. I am in illegal detention since then. How can he say that I have sent the files to the President? Under what authority did he send the files to the President?” the counsel asked.

He urged the court to declare the Governor’s action as unconstitutional and consequently order the petitioner’s release from prison. Later, the judges adjourned the hearing to Monday and asked the counsel to clarify the provisions of law under which she had been convicted. They specifically wanted to know whether she got convicted under the Terrorist and Disruptive Activities (Prevention) Act of 1987.