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Special Original Jurisdiction) W.P. No. 2881 of 2019 S.Nalini written submission counsel radakrishnan

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[2/18, 12:54] Sekarreporter: In the High Court of Judicature at Madras
(Special Original Jurisdiction)
W.P. No. 2881 of 2019
S.Nalini
W/o Sriharan @ Murugan
Convict No.810
Special Prison for Women
Vellore. … Petitioner
vs
1.. The State of Tamil Nadu
rep. by the Secretary to Government
Home, Prohibition and Excise Department
Secretariat, Chennai 600 009 and another
… Respondents
WRITTEN SUBMISSIONS OF THE PETITIONER
It is submitted that the Supreme Court has in The Home Secretary (Prison) & Ors
v H. Nilofer Nisha (Criminal Appeal No. 144 of 2020 decided on 23 January 2020) held
as follows:
“14. It is a settled principle of law that a writ of habeas corpus is available
as a remedy in all cases where a person is deprived of his/her personal
liberty. It is a processual writ to secure liberty of the citizen from unlawful
or unjustified detention whether a person is detained by the State or is
in private detention.”
The petitioner herein has been under unlawful and unjustified detention of the State of
Tamil Nadu. So, the petition for issuance of a Writ of Habeas Corpus is maintainable.
It is submitted that a Constitution Bench of the Supreme Court has in
Maru Ram v Union of India : AIR 1980 SC 2147 held as follows:
[2/18, 12:55] Sekarreporter: “61. … … because the President is symbolic, the Central Government is
the reality even as the Governor is the formal head and sole repository of
the executive power but is incapable of acting except on, and
according to, the advice of his council of ministers. The upshot is
that the State Government, whether the Governor likes it or not, can
advise and act under Article 161, the Governor being bound by that
advice. The action of commutation and release can thus be pursuant to a
governmental decision and the order may issue even without the
Governor’s approval although, under the Rules of Business and as a
matter of constitutional courtesy, it is obligatory that the signature of
the Governor should authorize the pardon, commutation or release. The
position is substantially the same regarding the President. It is not open
either to the President or the Governor to take independent decision or
direct release or refuse release of any one of their own choice. It is
fundamental to the Westminster system that the Cabinet rules and the
Queen reigns.”
… … … …
We conclude by formulating our findings. … (8) The power under
Articles 72 and 161 of the Constitution can be exercised by the Central
and State Governments, not by the President or Governor on their own.
The advice of the appropriate Government binds the Head of the
State.”
The above dictum of the Constitution Bench has been reiterated by another Constitution
Bench of the Supreme Court in Kehar Singh v Union of India : (1989) 1 SCC 204:
“7. … We may point out that the Constitution Bench of this Court held in
Maru Ram v Union of India, that the power under Article 72 is to be
exercised on the advice of the Central Government and not by the President
on his own, and that the advice of the Government binds the Head of the
State.”
It is submitted that since the Council of Ministers of the State of Tamil Nadu had
advised the Governor of Tamil Nadu as early as on 9.9.2018 to release the petitioner
under Article 161 of the Constitution of India, the petitioner ought to have been released
on 10.9.2018 itself. by the State of Tamil Nadu. As per the ruling of the Supreme Court
in Maru Ram’s case (supra), the Governor’s signature is not necessary
[2/18, 12:55] Sekarreporter: 3-
for the purpose of releasing the petitioner on 10.9.2018. Since the petitioner has not yet
been released from prison, she has been under illegal detention of the State of Tamil
Nadu every day since 10.9.2018.
It is submitted that 7-Judge Constitution Bench of the Supreme Court has in State
of Rajasthan v Union of India : (1977) 3 SCC 592 held as follows:
“It is for this Court to uphold the constitutional values and to enforce the
constitutional limitations. That is the essence of the rule of law.”
The above observations of the Supreme Court would also apply to the Hon’ble
Court. It would be in the interest of justice that a Writ of Habeas Corpus be issued
setting the petitioner at liberty forthwith.
Dated at Chennai this the 18th day of February 2020
COUNSEL FOR THE PETITIONER

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