The Governor cannot reject the mercy petitions without consulting the Council of Ministers.

1. In all these cases, the petitioners are seeking to issue a writ of declaration, declaring that the order of the first respondent/Governor, in rejecting the mercy petitions dated 110. 1999 submitted by the petitioners as communicated in the communication dated 210. 1999, issued by the forth respondent as ultra vires, the Constitution of India illegal and inoperative.

2. The petitioners were charge-sheeted and tried in the Rajiv Gandhi Assassination Case. The designated Court convicted them for offences under Section 302 read with Section 120-B of the Indian Penal Code and under TADA and other offences. The appeals preferred by the petitioners were dismissed by the Apex Court. Even the Review Applications ended in dismissal, as a result of which the date was fixed by the jail authorities for hanging the petitioners.

3. Thereafter, according to the petitioners, they have submitted the petitions dated 110. 1999, claiming the mercy of the Governor of the State of Tamil Nadu with enclosures and annexures in support of their claim. Under the impugned proceedings the Deputy Secretary to Government, Home Department informed the petitioners that the Governor of Tamil Nadu who considered the mercy petitions submitted by the petitioners under Article 161 of the Constitution of India has rejected the same. This letter was sent to the Inspector generals of prisons with the request to inform the same to the petitioners accordingly. The Inspector General of prisons has also been requested to obtain the mercy petitions to be prepared by the petitioners to the President of India, under Article 72 of the Constitution of India and forward them to Government forthwith.

4. The Learned Additional Advocate General has taken notice on behalf of the respondents 2 to 5 and produced the file for perusal of this Court. Since the learned Additional Advocate General is appearing for respondents 2 to 5, this court felt that he could assist the court in appreciating the facts and law on the issue, and so no separate notice to the first respondent is necessary.

5. The main issue that has been raised in all these cases is that the decision arrived at by the 1st respondent/Governor to reject the petitioners mercy petitions without even consulting the council of Ministers is unsustainable in law.

6. To decide the said issue, it is beneficial to extract Articles 72 and 161 of the Constitution of India, which run as follows:-

"72. Power of President to grant pardons. etc., and to suspend, remit or commute sentences in certain cases:- (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence-

.(a) in all cases where the punishment or sentence is by a court martial;

.(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the union extends;

.(c) in all cases where the sentence is a sentence of death.

.(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a court martial.

.(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force".

"161 Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases:- The Governor of a state shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends".

7. Article 72 of the Constitution deals with the power of the President to grant pardons, reprieves, respites etc. Article 161 gives power to the Gover