Governor bound by Cabinet advice in remission decisions whether he likes it or not: Madras High Court

The Madras High Court on Thursday held that the Governor of a State is bound by the aid and advice of the State Cabinet while exercising powers of remission and premature release of convicted prisoners under Article 161 of the Constitution, and cannot act independently to reject such recommendations.

The Governor cannot act independently to reject such recommendations, a full bench of Justices AD Jagadish Chandira, GK Ilanthiraiyan and Sunder Mohan held.

"The Hon’ble Governor is bound by the advice of the Council of Ministers regardless of whether the Hon’ble Governor likes that advice or not and under no circumstance, the Hon’ble Governor can exercise discretion to take a different view from the one taken by the Council of Ministers," the Court made it clear.

The judgment was delivered in a batch of petitions challenging rejection of premature release of life convicts despite favourable Cabinet recommendations.

The reference to the full bench arose after a division bench noticed conflicting views in earlier judgments on whether the Governor could exercise discretion in such matters.

The batch of petitions before the Court arose from cases in which the State Cabinet had recommended premature release of life convicts under applicable policies, but the proposals were either rejected or not acted upon by the Governor.

The petitioners moved the Court contending that once the cabinet takes a decision, the Governor cannot override or disregard the same.

The Court framed the issue as follows - whether the Governor is bound by the aid and advice of the Council of Ministers in remission cases, and if so, whether any limited discretion survives.

Answering the reference, the Court held that the constitutional position is settled and leaves no room for ambiguity.

“It is well settled that the Governor is bound by the advice given by the Council of Ministers in matters relating to remission and premature release, which are indeed powers exercised by him by virtue of Article 161 of the Constitution of India,” the Court stated.

Relying on Supreme Court precedents in Maru Ram v. Union of India and AG Perarivalan v. State of Tamil Nadu, the bench emphasised that the Governor functions as a constitutional head and cannot act independently of the elected government.

The Court also addressed the argument based on MP Special Police Establishment v. State of MP, which had been relied upon to contend that the Governor could act in his discretion where the Cabinet’s decision is vitiated by bias or irrationality.

Rejecting this contention, the Bench clarified that the said judgment dealt with a distinct statutory context relating to sanction for prosecution and does not govern the exercise of constitutional powers under Article 161.

Hence, the Court concluded that the Governor has no independent discretion in matters of remission and premature release under Article 161.

It concluded that the advice of the Council of Ministers is binding and any challenge to such decisions must be addressed through judicial review by constitutional courts.

The petitioners were represented by advocates including M Mohamed Saifulla, D Mario Johnson, S Nadhiya, M Murugesan, M Madhumitha, S Manoharan and M Radhakrishnan.

The State was represented by State Public Prosecutor Hasan Mohamed Jinnah, Additional Public Prosecutor E Raj Thilak, Government Advocate (Criminal Side) S Santhosh, V Sumi Arnica, S Arun Pandi and A Mohammed Imran.

[Read Judgment]