The Governor's formal authorization was required for release, despite the recommendation of the Council of Ministers, and the court did not have the power to direct release without the Governor's acceptance.

JUDGMENT

(Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondents to implement the State's release decision of the petitioner namely Ravi @ Ravichandran (C.P.No.4967) who has undergone nearly 29 years of actual imprisonment and 37 years of imprisonment including remission forthwith or within the reasonable time fixed by this Court.)

Common Order:

Munishwar Nath Bhandari, CJ.

This writ petition has been filed to direct the respondents to implement the State's decision to release the petitioner.

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 altered the death sentence imposed on the petitioner to imprisonment for life.

4. 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 similar petitions of other six life convicts, including the present petitioner, and resolved to grant remission and sent the recommendation to the Governor of Tamil Nadu for his approval on 11.9.2018. However, till date no order has been passed on the recommendation and, hence, this writ petition.

5. 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.

6. 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 of the resolution of the Council of Ministers dated 9.9.2018. Referring to paragraphs (60) and (61) of the judgment cited supra, it is submitted that the ratio propounded therein clarifies the legal position qua the exercise of power by the Governor under Article 161 of the Constitution of India to the effect that the order of release can be issued pursuant to the decision of the Government even without the Governor's authorisation. Therefore, a prayer is made to issue an order on the Government to release the petitioner pursuant to the resolution of the Council of Ministers dated 9.9.2018.

7. It is further submitted that the decision of the Governor to send the matter to the President of India during the pendency of the writ petition after keeping the advice of the Council of Ministers pendin