Rajiv Gandhi assassination: Madras HC dismisses plea for Nalini’s early release

The Madras High Court today dismissed a plea moved by Nalini Sriharan, a convict in the Rajiv Gandhi assassination, seeking a direction to the Tamil Nadu Governor to act on the State’s proposal for her premature release..The Bench of Justices R Subbiah and C Saravanan found that the plea was not maintainable since the Court was not authorised to make the Governor answerable to it when it comes to the discharge of his official functions. This is in view of the Constitutional bar under Article 316 of the Constitution, the Court ruled. As noted in the order,.“…it is abundantly clear that the Governor of the State is insulated from being questioned or made answerable to the Courts with respect to discharge of his constitutional functions and duties. The immunity so conferred on the Governor of the State is unfettered and it cannot be intruded by this Court in exercise of the power conferred under Article 226 of The Constitution of India.“.Inter alia, Article 361 lays down,.“The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties…”.The Court took note that this aspect has also been highlighted in various cases including, Rameshwar Prasad v. Union of India and Nabam Rebia v. Gauhati High Court. Summing up the legal position, the Madras High Court observed,.“Article 361 of The Constitution of India gives complete immunity and privilege to the Governor of the State in discharge of his constitutional obligation. Therefore, questioning the discharge of act of the Governor or failure to discharge his constitutional obligations cannot be subjected to judicial scrutiny under Article 226 of The Constitution of India by arraying him as a party to the writ proceedings. .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 of the State cannot therefore be equated with the instrumentalities of the Government enumerated under Article 12 of The Constitution of India who are amenable to the jurisdiction of this Court under Article 226 of The Constitution of India.” .In view of these observations, the Court dismissed the plea as not maintainable, stating,.“The personal immunity under Article 361 of the Constitution of India is clear and specific in not to proceed against the President or a Governor of a State, and therefore, the present writ petition, arraying the Governor of the State as respondent No.1 is not maintainable.”.The State’s recommendation for the premature release of the seven convicts, including Nalini, has been pending with the Governor for his counter-sign for over ten months after it was made in September 2018..Questioning the delay of the Governor in acting on the proposal, in the exercise of his powers of pardon under Article 161 of the Constitution, the plea had been moved by Nalini this year..Advocate M Radhakrishnan appeared for Nalini in the case. Arguments for the government were advanced by Advocate General Vijay Narayan.