Cannot direct Governor to release Rajiv case convicts: HC
CHENNAI, JULY 19, 2019 00:00 IST
Nalini Sriharan
Holds as not maintainable a writ petition filed by Nalini
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 recommendation made by the State Cabinet on September 9 for premature release of all seven life convicts.
A Division Bench of Justices R. Subbiah and C. Saravanan said that no such direction could be issued to the Governor since the person holding the office had been insulated, under Article 361(1) of the Constitution, from being questioned or made answerable to courts of law with respect to discharge of his / her constitutional functions and duties.
The judges agreed with Advocate General Vijay Narayan that the immunity so conferred on the Governor of a State was unfettered and it could not be intruded by the High Court in exercise of the power, to issue writs, conferred on it under Article 226 of the Constitution. The personal immunity under Article 361 was clear and specific, the judges said.
‘No judicial scrutiny’
Authoring the verdict, Justice Subbiah observed that neither the discharge of a constitutional duty by the Governor nor the failure to discharge such an obligation could be subjected to judicial scrutiny under Article 226 by arraying him / her as a party to the writ proceedings since Article 361 completely insulates the person holding the office.
“In this case, even assuming that the Governor of the State did not take into account the advice given by the Council of the Ministers, it will not be a ground for the petitioner to file this writ petition and contend that the protection of life and personal liberty guaranteed under Article 21 of the Constitution of India has been infringed.
“The privileges and immunity conferred on the Governor of the State under Article 361 of the Constitution of India is a clear bar for the petitioner to file the present writ petition. The Governor cannot therefore be equated with government instrumentalities, enumerated under Article 12, who are amenable to the writ jurisdiction of this court,” he said.
He said the Supreme Court had in Rameshwar Prasad versus Union of India (2006) held that a Governor could not be made answerable to the courts.even in cases where allegations of mala fide had been attributed.
CHENNAI, JULY 19, 2019 00:00 IST
Nalini Sriharan
Holds as not maintainable a writ petition filed by Nalini
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 recommendation made by the State Cabinet on September 9 for premature release of all seven life convicts.
A Division Bench of Justices R. Subbiah and C. Saravanan said that no such direction could be issued to the Governor since the person holding the office had been insulated, under Article 361(1) of the Constitution, from being questioned or made answerable to courts of law with respect to discharge of his / her constitutional functions and duties.
The judges agreed with Advocate General Vijay Narayan that the immunity so conferred on the Governor of a State was unfettered and it could not be intruded by the High Court in exercise of the power, to issue writs, conferred on it under Article 226 of the Constitution. The personal immunity under Article 361 was clear and specific, the judges said.
‘No judicial scrutiny’
Authoring the verdict, Justice Subbiah observed that neither the discharge of a constitutional duty by the Governor nor the failure to discharge such an obligation could be subjected to judicial scrutiny under Article 226 by arraying him / her as a party to the writ proceedings since Article 361 completely insulates the person holding the office.
“In this case, even assuming that the Governor of the State did not take into account the advice given by the Council of the Ministers, it will not be a ground for the petitioner to file this writ petition and contend that the protection of life and personal liberty guaranteed under Article 21 of the Constitution of India has been infringed.
“The privileges and immunity conferred on the Governor of the State under Article 361 of the Constitution of India is a clear bar for the petitioner to file the present writ petition. The Governor cannot therefore be equated with government instrumentalities, enumerated under Article 12, who are amenable to the writ jurisdiction of this court,” he said.
He said the Supreme Court had in Rameshwar Prasad versus Union of India (2006) held that a Governor could not be made answerable to the courts.even in cases where allegations of mala fide had been attributed.
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