Says she cannot seek a direction to Governor for early release

Advocate-General Vijay Narayan on Monday questioned the maintainability of a writ petition filed by S. Nalini, 52, a life convict in the former Prime Minister Rajiv Gandhi assassination case, seeking a direction to the Governor to countersign a recommendation made by the State Cabinet on September 9 last year for releasing all seven convicts in the case.

Opposing the writ petition pending before a Division Bench of Justices R. Subbiah and C. Saravanan, he said 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 said that in so far 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.

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 when he was already seized of the issue and had sought legal opinion before taking a final call on the matter. Also taking exception to the “peculiar” nature of petitioner’s prayer, the A-G 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?”

SC notice

Mr. Narayan also pointed out that the Supreme Court in January 2016 issued a notice to the then Arunachal Pradesh Governor J.P. Rajkhowa seeking explanation as to why he recommended President’s rule in the State. However, within days thereafter, the court recalled the notice after it was apprised that the Governor enjoyed complete immunity under Article 361(1).

The A-G read out several passages from the apex court judgment in Rameshwar Prasad’s case (2006) and contended that the Governor ought not to have been made a respondent to the present writ petition.

After hearing him, the judges adjourned the writ petition to Thursday for hearing the arguments to be advanced by the petitioner’s counsel M. Radhakrishnan and P. Pugalenthi on the preliminary issue of the maintainability of the petition.