Nalini’s premature release: Court reserves orders

Making submission before a division bench comprising Justice R Subbiah and Justice C Saravanan, advocate M Radhakrishnan appearing for Nalini, said it is more than ten months since the Council of Ministers tendered advice to the Governor under Article 161 of the Constitution regarding the release of the petitioner. But since the Governor has not acted on the advice of the Ministers, he has committed contempt of the Supreme Court, Nalini’s counsel said.

Citing the case between Maru Ram v Union of India, the State Government under Article 161 of the Constitution binds the Head of the State, he said the advice dated September 9, 2018 tendered by the Ministers binds the Governor. “When the advice is binding, the Governor, a constitutional functionary, has no discretion whatsoever but to act immediately on the advice of the Council of Ministers and he has no discretion whatsoever,” Radhakrishnansubmitted.

Further, going by the issue raised in the writ petition as to whether a Governor of a State can refuse to act,Nalini’s counsel said going by his conduct during the last ten months, Nalini has been under illegal detention since September 9 2018.

He submitted that Nalini’s plea should be numbered as it involves interpretation of Article 161 and hence ought to be posted for admission.

In an earlier hearing on Monday last, Advocate General Vijay Narayan opposed Nalini’s plea on the ground of maintainability. He said the court can’t even order notice to the Governor as he enjoyed complete immunity under Article 361 of theConstitution.