The Union Home Ministry on Thursday asserted before the Madras High Court that its approval was absolutely essential for releasing the seven life convicts in the former Prime Minister Rajiv Gandhi assassination case and since it had already decided not to grant remission to any of them, the effect of a recommendation made by the State Cabinet to the Governor on September 9, 2018 to set them free was nothing but “zero.”
Additional Solicitor General (ASG) G. Rajagopalan told a bench of Justices R. Subbiah and R. Pongiappan that the Centre had also communicated to Governor Banwarilal Purohit a decision taken by it in April 2018 against releasing the seven convicts. On his part, State Public Prosecutor (SPP) A. Natarajan told the court that the Council of Ministers had only made a recommendation and it was up to the Governor to take a call.
Expressing shock over such a stand taken by the Centre and the State, M. Radhakrishnan, counsel for one of the convicts S. Nalini who had filed a habeas corpus petition seeking her immediate release, said, “There is a difference between an executive power and a sovereign power. The Union of India cannot even be allowed to speak in this matter because it relates to advice given by the council of ministers in the State to the Governor.
“It is unfortunate that such submissions are being made by the Additional Solicitor General. The State Public Prosecutor too is wrong in submitting that the Governor is the final authority. Ours is a quasi federal country where the Governors act as per the aid and advice of the council of ministers in every State but the submissions made now probably show the State government here is being run on the aid and advice of the Union Home Ministry.”
Verdict reserved
After hearing all of them, the judges reserved their verdict on the petition filed by Nalini who had sought her release on the ground of long delay on the part of the Governor in taking a decision on the Cabinet’s recommendation. Stating that the advice given by the council of ministers was binding upon the Governor and he would have no option but to accept it, the petitioner said, her detention since the date of recommendation should be considered illegal.
Further, contending that the Governor’s signature was not mandatory for her release, the petitioner’s counsel relied upon a 1980 Supreme Court verdict in the famous Maru Ramu case wherein a Constitutional Bench had held: “The State Government, whether the Governor likes it or not, can advise and act under Article 161 (power of Governor to grant pardon) of the Constitution, the Governor being bound by that advice.
“The action of commutation and release can thus be pursuant to a governmental decision and the order may be issued even without the Governor’s approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorize the pardon, commutation or release.” Therefore, obtaining Governor’s assent was only a matter of courtesy and not mandatory, he argued.
On his part, the ASG relied upon Section 435 of the Code of Criminal Procedure and stated that Centre’s concurrence was essential before a State government decides to remit the punishment imposed on those convicted for offences under the Central Acts and in cases investigated by a central agency. The Tamil Nadu government sought for such concurrence for the seven convicts in March 2, 2016 and the Centre rejected it in April 18, 2018, he pointed out.
The SPP said the petitioner’s detention since September 2018 could not be termed illegal since she had been lodged in prison as per orders passed judicial forums.
Stating that the Council of Ministers had only made a recommendation to the Governor for releasing the seven convicts, he said: “The government’s duty ends with making a recommendation. Unless the Governor passes an order on the recommendation, there is no question of illegal detention.”
