The Madras High Court on Wednesday held that a recommendation made by the State Cabinet to the Governor on September 9, 2018, for releasing all seven life convicts involved in the former Prime Minister Rajiv Gandhi assassination case would come into effect only after the Governor affixes his signature and not otherwise.
Justices R. Subbiah and R. Pongiappan held so while dismissing a habeas corpus petition filed by one of the convicts S. Nalini to declare her detention since September 10, 2019, as illegal and consequently order her release forthwith on the ground that the Governor’s nod was sought only as a matter of constitutional courtesy.
The Bench said: “The mere advice tendered by the council of ministers will not entitle the petitioner to get released prematurely unless it was accepted or signed by the Governor. The signing of the order by the Governor is mandatory and in the absence of the same, the petitioner cannot get the benefit.”
The judges concurred with Additional Solicitor General (ASG) G. Rajagopalan and State Public Prosecutor A. Natarjan that the Cabinet’s recommendation per se would not entitle the convict to lay a claim of illegal detention when she and all other convicts had been put through a full fledged trial and were found guilty in the courts of law.
Further, the ASG also relied upon a 1988 judgment of the Supreme Court wherein it was held that the Governor’s nod for decisions taken by the State government was not a mere formality and that it was mandatory.
Deciding to follow the principle laid down in that verdict, the Bench led by Justice Subbiah said: “Thus, it is evident from the above decision that the order, though it may be formal, to be passed by the Governor of the State assumes significance and without the consent of the Governor or his signature on the proposal sent to him, such proposal shall not take effect.”
Insofar as the present case was concerned, the Cabinet had made a recommendation to release all seven convicts. However, “such advice has not been acted upon and it is pending consideration of the Governor. No order has been passed thereof as on date. While so, merely based on the advice of the council of ministers, her detention cannot be declared as illegal,” the Bench concluded.
