The Madras High Court on Thursday held as not maintainable a writ petition filed by former Prime Minister Rajiv Gandhi assassination case convict S. Nalini seeking a direction to the Governor to “countersign” a State Cabinet recommendation made on September 9 last year for premature release of all seven convicts in the case.
A Division Bench of Justices R. Subbiah and C. Saravanan upheld the objections raised by the High Court Registry for numbering the case and agreed with Advocate General (A-G) Vijay Narayan that no direction as sought for by the convict could be issued to the Governor who had to exercise his power under Article 161 of the Constitution.
During the course of arguments, the A-G argued that the court could not even order notice to the Governor since he enjoyed complete immunity under Article 361 of the Constitution and he would not be answerable to any court for the exercise and performance of the powers and duties of his office.
He pointed out that insofar as the present case was concerned, the Governor had to exercise his constitutional power under Article 161, which relates to granting pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence relating to a matter to which the executive power of the State extends.
When such was the case and when he was seized of the issue, courts could not compel the Governor to act in a particular fashion, the A-G said.
Nevertheless, accepting that the Governor had to act as per the aid and advice of the Council of Ministers while exercising his constitutional powers, the A-G said no court of law could issue a writ of mandamus directing him to exercise his constitutional functions, especially when he was awaiting legal opinion before taking a final call on the matter.
Also, taking exception to the “peculiar” nature of the petitioner’s prayer, the A-G had said, “Petitioner wants a direction to the first respondent (Governor) to countersign a recommendation made by second respondent (State government). Where is the question of countersigning when the Governor has to exercise constitutional powers under Article 161?”