‘Governor’s sign must on advice tendered by ministers’ council’

A division bench comprising Justice R Subbiah and Justice R Pongiappan on noting that the mere advice tendered by the Council of Minister will not entitle the petitioner to get released prematurely unless it was accepted or signed by the Governor, said “The signing of the order by the Governor of the State on the advice tendered by the Council of Ministers is mandatory and in the absence of the same, the petitioner cannot get the benefit of premature release in her favour.”

Also, setting aside the contention by Nalini’s counsel M Radhakrishnan said that the decision of the cabinet binds the Governor and hence the detention thereafter is illegal, the bench also held the HCP as unmaintainable.

“We are of the firm view that the present HCP filed by the petitioner to declare her detention as illegal is not maintainable when the incarceration of the petitioner is pursuant to due trial conducted by the Court of competent jurisdiction,” the bench said.

Further, the bench led by Justice Subbiah on citing a Supreme Court order which held that though the Governor is bound by the advice of the Council of Ministers, it is still obligatory that the signature of the Governor is mandatory to authorise the pardon, commutation or release, the bench said “Therefore, the contention urged on behalf of the petitioner that the Governor’s approval or consent is not necessary, and the petitioner can be released on the basis of the advice given by the Council of Minister on 09.09.2018 cannot be countenanced.”

It may be noted that this is the third such petition moved by Nalini that has been dismissed. One of the pleas had roped in the Governor as a respondent in the case and sought the court to direct him to act on the cabinet’s decision recommending her premature release.