The Governor is bound by the recommendation of the Council of Ministers, but his formal authorization is required for release, as observed in Maru Ram v. Union of India, AIR 1980 SC 2147.

JUDGMENT

(Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of declaration declaring that the failure of the Governor of Tamil Nadu to Act in accordance with the advice of the Council of Ministers of the State of Tamil Nadu dated 9.9.2018 under Article 161 of the Constitution of India recommending release of the petitioner from prison is unconstitutional and consequently directing respondent No.1 to release the petitioner from prison immediately without the approval of the Governor of Tamil Nadu.)

Munishwar Nath Bhandari, J.

1. This petition has been filed seeking release of the petitioner, in view of the recommendation of the Council of Ministers dated 9.9.2018 for remission.

2. The petitioner is a convict in the criminal case registered for the assassination of Mr.Rajiv Gandhi, former Prime Minister of India, on the night of 21.5.1991 along with 15 others, including 9 police personnel. During the course of occurrence, 43 persons suffered grievous or simple injuries. The petitioner and other accused were sentenced to death by the Presiding Judge, Designated Court No.1, Poonamallee (Additional City Civil and Sessions Court, Chennai), by order dated 28.1.1998.

3. By judgment dated 11.5.1999 in Death Reference Case No.1 of 1998 along with Criminal Appeal Nos.321 to 325 of 1998 [State v. Nalini and others, (1999) 5 SCC 253], the Apex Court confirmed the conviction and sentence imposed on the petitioner. The review petition filed by the convict was dismissed on 8.10.1999.

4. The petitioner submitted a mercy petition to the Governor of Tamil Nadu on 17.10.1999, which was rejected vide proceedings dated 27.10.1999. Challenging the same, the petitioner filed W.P.No.17655 of 1999 before this Court. By order dated 25.11.1999, this Court remitted the matter for fresh consideration and ultimately based on the recommendation of the Government, the Governor of Tamil Nadu, by order dated 24.4.2000, commuted the death sentence imposed on the petitioner to one of life imprisonment.

5. Pursuant to the direction of the Apex Court in W.P.(Crl.) No.48 of 2014 with Crl. Misc. Petition Nos.6280-6281 of 2017, dated 6.9.2018, the Government of Tamil Nadu considered the petition of the life convict A.G.Perarivalan under Article 161 of the Constitution of India in the Cabinet meeting held on 9.9.2018 along with other six life convicts, including the present petitioner, and resolved to grant remission and sent the recommendation to the Governor of Tamil Nadu on 11.9.2018 for his authorisation. However, till date no order has been passed on the recommendation and, hence, this writ petition.

6. Learned counsel for the petitioner submits that once the Council of Ministers took a resolution on 9.9.2018 for grant of remission to the petitioner, the Governor of the State should have acted on the advice, but the decision of the Council of Ministers has not been given effect to and, therefore, the petitioner was left with no other option but to prefer this writ petition to seek release of the petitioner without the authorisation of the Governor of the State.

7. Giving the background of the case, it is submitted that the petitioner is now convict for the offence under Section 302 of the Indian Penal Code (for brevity, “the IPC”), which otherwise remains in the executive domain of the State and, therefore, the Governor ought to have authorised the resolution of the Council of Ministers to extend the remission, instead of sending the matter to the President of India for consideration under Article 72 of the Constitution of India. In view of the above, the Governor of the State has failed to act as per the mandate of Article 161 of the Constitution of India. Thus, in view of the judgment of the Apex Court in the case of Maru Ram v. Union of India, AIR 1980 SC 2147, the court should order for release of the petitioner in the light o