TN Governor8217;s order rejecting mercy plea quashed

Her rejection order is not valid in law and it cannot be sustained. Accordingly the same is set aside, Justice Govindarajan observed today.

In his 20-page judgement allowing the prayer of the four accused, the judge, however, said that it is for the governor to pass a fresh order on the mercy petitions after getting the advice of the council of ministers.

In their writ petitions, the accused sought to declare the governor8217;s rejection order dated October 27, 1999, as ultra vires of the Constitution, illegal and inoperative. The decision arrived at by the governor without even consulting the council of ministers is unsustainable in law, their counsel K Chandru contended.

Allowing the petitions, the judge observed that before going into the scope of Articles 72 and 161, he was inclined to deal with the power of the governor under the Constitution, as held by the Supreme Court. The governor enjoys nothing more and nothing less than the status of Constitutional head in a cabinet type of government.

Citing various decisions of the Supreme Court, the judge said the power to grant pardon And to remit sentence under Art 161 will not come under the purview of discretionary powers given to the governor. Articles 1632, 371-A to 371-D and 371-F and VI Schedule to para 9 give such powers.

Again citing various judgements of the SC and a full bench of the Kerala HC, the judge observed it was clear that before taking a decision on the petitions filed under Art 161, the governor should take the advice of the council of ministers.

Though Additional Advocate General T R Rajagopalan agreed with this proposition of law, he submitted that when the Tamil Nadu Government Business Rules are in force and if the procedures have been accordingly complied with, the same amounts to strict compliance of the requirement of Art 161.

Citing several sections of the Business Rules, the AAG contended that the mercy petitions with all materials had been forwarded by the Chief Minister, who is in charge of the Home department. So, the question of further getting the advice from the council of ministers will not arise, especially when the Business Rules do not contemplate such a procedure, he argued.

Turning down the contention, the judge observed that merely because such a procedure of consulting the council of ministers is not contemplated, it cannot be said that it is not necessary, when such an obligation is contemplated under the Constitution and as held by the SC in various decisions.

When the governor cannot act on his/her own to decide petitions filed under Art 161, it cannot be said that seeking such advice is not necessary. It is well settled that exercise of powers under Art 161 cannot be categorised under the discretionary powers of the Governor, the judge said.

Mere forwarding the papers cannot be construed as giving advice. This view is supported by the decision of the SC in S R Bommai case. Since the procedure of getting advice from the council of ministers before the governor passed the order is not followed and also as decided by the SC in various cases, the rejection order is not valid in law, the judge said and quashed the same.

Plea to probe ex-SIT chief also denied

CHENNAI: 8212; The Madras HC has rejected a plea for a direction to the Multi Disciplinary Monitoring Agency MDMA to inquire former Special Investigation Team chief D R Karthikeyan for alleged lapses or defects on his part in holding the investigation in Rajiv Gandhi assassination case.

J Mohanraj, a member of the SIT, in his petition alleged that investigation was not done in the case in a proper manner. Certain vital witnesses and evidence were ignored.

Dismissing the petition, the first bench comprising Chief Justice K.G. Balakrishnan and Justice K. Sampath observed that the allegations of the petitioner are based on mere surmises and conjectures. Therefore, the prayer cannot be granted, the bench said.

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