The court said she had not followed the procedure of consulting the Council of Ministers before passing the order under Article 161 of the Constitution. That's why her rejection order is not valid in law and cannot be sustained, Justice K Govindarajan said.

In his 20-page verdict allowing the prayer of the four accused, the judge, however, said that it was 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 had sought to declare the Governor's rejection order dated October 27, 1999 as ultra vires of the Constitution since the state government hadn't been consulted. Allowing the petitions, the judge observed that the Governor enjoys the status ofa Constitutional head, no more and no less.

Citing various decisions of the Supreme Court, the judge said the power to grant pardon and to remit sentence under Art. 161 didn't come under the purview of the discretionary powers given to the Governor.

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 had been forwarded by the Chief Minister, who is in charge of the Home Department. So the question of further getting advice from the Council didn't arise.

Rejecting this, the judge said that merely because such a procedure of consulting the Council is not contemplated, it cannot be said that it's not necessary, when such an obligation is contemplated under the Constitution andas held by the apex court 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, the judge said, that exercise of powers under Art. 161 cannot be categorised under the discretionary powers of the Governor. And mere forwarding of papers cannot be construed as giving advice. This view is supported by the decision of the Supreme Court in S R Bommai case.

Meanwhile, in Delhi, Rashtrapati Bhawan has sought the Home Ministry's advice on the clemency petitions of the four accused. Sources in the Home Ministry said that Union Cabinet would decide. No time frame has been set for this, they said.

Meanwhile, Rashtrapati Bhawan had sought the Home Ministry's advice on the four mercy petitions as also Congress president Sonia Gandhi's request that Nalini's sentence be commuted to life imprisonment as she was the mother of an eight-year-old girl.

Govt's opinion soon
NEWDELHI: Uunion Home Ministry will give its opinion shortly to President K R Narayanan on clemency petitions for the four convicts sentenced to death. Narayanan had sought the ministry's advice on the mercy petitions of the four, as also on the request of Congress president Sonia Gandhi that the sentence of Nalini be commuted to life imprisonment. The sources said the President has indicated to the government that he would abide by its advice on the mercy petitions.