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IN THE HIGH COURT OF JUDICATURE AT MADRAS
MUNISHWAR NATH BHANDARI, N. MALA, JJ.
S. Nalini – Petitioner
Versus
The State of Tamil Nadu – Respondent
W.P. No. 7615 of 2022
Decided On : 17-06-2022
Constitution of India, 1949 - Article 226, 161, 72, 142, 163 - Foreigners Act, 1946 - Section 14 - Indian Penal Code, 1860 - Section 302 - Amendment Act of 1978 - Section 433-A - Foreigners Act, 1946 - Section 14 - Offence of Murder - Power of High Court to issue certain writs - Petition has been filed seeking release of petitioner recommendation of Council of Ministers - Petitioner is a convict criminal case registered for assassination - Held, Court hold writ petition to be not maintainable after dismissal of earlier three petitions issue especially last petition - Release cannot be directed even by court absence of acceptance resolution by Governor of recommendation of Council of Ministers has otherwise been sent to President of India development aforesaid is during pendency of writ petition reasons directions sought by petitioner cannot be given by court not have power similar to what Apex Court - Writ petition is dismissed.
Key Points: - The Governor’s signature/authorization is mandatory for remission/release even when advised by the Council of Ministers (!) (!) . - A mere Council of Ministers’ resolution cannot release without Governor’s acceptance and/or formal order; otherwise Article 161 would be redundant (!) (!) (!) . - In cases involving life/death sentences, the Governor or President must act in accordance with constitutional provisions; High Court directions cannot substitute for formal authorisation, except where Article 142 powers are invoked by the Supreme Court, not the High Court (!) (!) (!) . - Repeated petitions for the same relief are not maintainable; earlier judgments bind the subsequent petitions unless overturned on appeal (!) (!) . - The respondent’s argument that referral to the President under Article 72 is proper where multiple offences are involved is accepted; but release cannot be directed without proper authorisation (!) (!) (!) .
ORDER :
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.
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 vs. 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 vs. Union of India, AIR 1980 SC 2147, the court should order for release of the petitioner in the light of the resolution of th
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.
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 acc....
Governor is formal head and sole repository of executive power but is incapable of acting except on, and according to, advice of his Council of Ministers – Advice of State Cabinet is binding on Gover....
The advice of the State Cabinet is binding on the Governor regarding premature release under Article 161, and such decisions are subject to judicial review.
The Governor's dissenting opinion on premature release is not binding if it contradicts the State Cabinet's recommendations under Article 161 of the Constitution.
The Governor's dissent on premature release is not binding on the State Cabinet's recommendation, which must adhere to statutory eligibility criteria.
The advice of the State Cabinet is binding on the Governor regarding premature release under Article 161, and judicial review is permissible if the Governor's decision lacks application of mind.
The advice of the State Cabinet is binding on the Governor regarding premature release under Article 161, and judicial review is available for arbitrary decisions.
The Governor's discretion under Article 161 is bound by the State Government's advice regarding remission, and reasons for dissent must be valid and substantiated.
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