Rajiv Gandhi case convicts: Tamil Nadu governor holds key to freedom
TNN | Feb 9, 2020, 04.25 AM IST
CHENNAI: One signature — that of Tamil Nadu governor Banwarilal Purohit — now stands between the seven life convicts of the Rajiv Gandhi assassination case, and their freedom.
Not the central government, not the Supreme Court and not even the state government. It is now the governor who shall sign their premature release warrant. The central government’s affidavit in the Madras high court, in response to a habeas corpus petition filed by India’s longest serving woman prisoner, Nalini Sriharan, on Friday referred to the Supreme Court’s order and said it is the governor who shall take an appropriate decision on the matter. It even said the fate of A G Perarivalan’s mercy petition, pending before Purohit, too hinged on the ‘discretion’ of the governor.
TNN | Feb 9, 2020, 04.25 AM IST
CHENNAI: One signature — that of Tamil Nadu governor Banwarilal Purohit — now stands between the seven life convicts of the Rajiv Gandhi assassination case, and their freedom.
Not the central government, not the Supreme Court and not even the state government. It is now the governor who shall sign their premature release warrant. The central government’s affidavit in the Madras high court, in response to a habeas corpus petition filed by India’s longest serving woman prisoner, Nalini Sriharan, on Friday referred to the Supreme Court’s order and said it is the governor who shall take an appropriate decision on the matter. It even said the fate of A G Perarivalan’s mercy petition, pending before Purohit, too hinged on the ‘discretion’ of the governor.
There are only three routes to clemency — by the President under Article 72 of the Constitution, by the governor under Article 161 of the Constitution, and by the state government under Section 435 of Code of Criminal Procedure (CrPC). The President has rejected it multiple times and the Tamil Nadu government’s bid to invoke CrPC Section 435 bombed after the Centre moved the Supreme Court and got an order stating that ‘consultation’ in respect of a case probed by central agencies would mean ‘concurrence’. The Centre rejected the Tamil Nadu government’s early release proposal and made it clear long ago that it is against the premature release of the seven.
Only Article 161, available to the governor, is left. Bitten once, the Tamil Nadu government adopted the Article 161 route on September 9, 2018, and recommended the case to the governor, who is sitting on it for more than 18 months. Of course, constitutionally, a governor can take time to decide and need not explain the reason for delaying the decision. Concurring with this leeway available to the governor, advocate M Radhakrishnan, counsel for Nalini, says it will not mean the constitutional office can withhold the decision for an indefinite period. Radhakrishnan advised Nalini to adopt a rather adventurous route of filing a habeas corpus petition, which primarily deals with illegal detentions.
Since Article 161 does not allow any discretion for the governor and because he is constitutionally bound by the state cabinet resolution, every day’s delay on his part amounts to extension of illegal detention of Nalini, he said.
Can courts engage the governor in litigation when a Constitution bench judgment in the Rameshwar Prasad case (2006) clearly says the President or governor should not be made answerable to court? The immunity available to the two under Article 361 is absolute, the apex court said, adding that even notice cannot be served to them nor they be ever asked to appear in court. The same judgment, however, says courts cannot be silent spectators if these constitutional authorities do not perform their duties. Without sending notice to them the court could adjudicate legality or otherwise of their action or inaction.
There are at least three constitutional bench judgments — Maru Ram (1980), Kedar Singh (1989) and Sriharan alias Murugan (2015) —which say the governor has no discretion and that cabinet decision is binding on him.
On this count, the status of Tamil Nadu governor is quite unenviable, as he is torn between a constitutional obligation to offer nod to a state cabinet decision and personal or ideological necessity to sail with the Centre’s stand. There is also a theoretical possibility of Madras high court allowing Nalini’s petition by declaring that her continued incarceration is either unjustified or unlawful due to the unexplained delay by the governor in making the only option available to him.
Only Article 161, available to the governor, is left. Bitten once, the Tamil Nadu government adopted the Article 161 route on September 9, 2018, and recommended the case to the governor, who is sitting on it for more than 18 months. Of course, constitutionally, a governor can take time to decide and need not explain the reason for delaying the decision. Concurring with this leeway available to the governor, advocate M Radhakrishnan, counsel for Nalini, says it will not mean the constitutional office can withhold the decision for an indefinite period. Radhakrishnan advised Nalini to adopt a rather adventurous route of filing a habeas corpus petition, which primarily deals with illegal detentions.
Since Article 161 does not allow any discretion for the governor and because he is constitutionally bound by the state cabinet resolution, every day’s delay on his part amounts to extension of illegal detention of Nalini, he said.
Can courts engage the governor in litigation when a Constitution bench judgment in the Rameshwar Prasad case (2006) clearly says the President or governor should not be made answerable to court? The immunity available to the two under Article 361 is absolute, the apex court said, adding that even notice cannot be served to them nor they be ever asked to appear in court. The same judgment, however, says courts cannot be silent spectators if these constitutional authorities do not perform their duties. Without sending notice to them the court could adjudicate legality or otherwise of their action or inaction.
There are at least three constitutional bench judgments — Maru Ram (1980), Kedar Singh (1989) and Sriharan alias Murugan (2015) —which say the governor has no discretion and that cabinet decision is binding on him.
On this count, the status of Tamil Nadu governor is quite unenviable, as he is torn between a constitutional obligation to offer nod to a state cabinet decision and personal or ideological necessity to sail with the Centre’s stand. There is also a theoretical possibility of Madras high court allowing Nalini’s petition by declaring that her continued incarceration is either unjustified or unlawful due to the unexplained delay by the governor in making the only option available to him.
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