Chennai, April 2 The Madras High Court on Thursday ruled that in matters relating to the remission and premature release of convicted prisoners, the Governor is bound by the advice of the council of ministers.
A Full Bench comprising Justices A D Jagdish Chandra, G K Illanthiraiyan and Sunder Mohan gave the ruling while responding to a reference made by a Division Bench earlier.
When a Division bench had taken up the case of Eswaran Vs State of Tamil Nadu along with eight other cases for hearing, the petitioners raised a plea that their case for premature release had been considered by the State Cabinet, and subsequently, the relevant documents were sent to the Governor, who had acted in his discretion and rejected the same, which was unsustainable in the eyes of the law.
While considering this plea, the aforesaid Division Bench had noticed a seeming contradiction in the views taken by two Division Benches of this Court in Veera Bharathi Vs State and Murugan @ Thirumalai Murugan Vs State. Therefore, the aforesaid Division Bench framed two issues and directed the Registry to place these matters before the Chief Justice to constitute a Larger Bench for an authoritative pronouncement.
Upon the directions of the Chief Justice, the present Full Bench was constituted to decide these two issues: whether the Governor is bound by the advice given by the council of ministers in matters relating to remission and premature release, and if so, under what circumstances does the Governor have the discretion to take a view different from that taken by the council of ministers?
State Public Prosecutor Hasan Mohamed Jinnah submitted that the Division Bench in the Veera Bharathi case had followed the ruling in A G Perarivalan Vs State through the Superintendent of Police and State of Haryana and others Vs Raj Kumar @ Bittu, and held that the advice of the State Cabinet binds the Governor in exercising his power under Article 161 of the Constitution of India. Furthermore, he stated that another Division Bench in the Murugan @ Thirumalai Murugan case had relied on the ruling of the Constitution Bench in MP Special Police Establishment Vs State of MP, and held that this allows the Governor to act in his own discretion when, on facts, bias becomes apparent or the decision of the council of ministers is shown to be irrational and based on the non-consideration of relevant factors.
He said that the judgment in the Perarivalan case was rendered, inter alia, on the basis of the ratio laid down by a 7-Judge Bench in Samsher Singh Vs State of Punjab and the Constitution Bench decision in Maru Ram Vs Union of India. He added that in Maru Ram, it was categorically held that the Governor is the formal head and sole repository of executive power but is incapable of acting except on and according to the advice of his council of ministers, regardless of whether the Governor likes that advice or not.
He said that the question of law to be considered in the MP Special Police Establishment case was whether the Governor can act in his discretion and against the advice of the council of ministers in a matter of granting sanction for the prosecution of ministers for offences under the Prevention of Corruption Act and/or under the Indian Penal Code. While deciding this question, the Constitution Bench categorically held that when on facts, bias becomes apparent or the decision of the council of ministers is shown to be irrational and based on the non-consideration of relevant factors, the Governor would be right to act in his own discretion and grant sanction, he added.
He said in the MP Special Police Establishment case, the act of granting sanction by the Governor was a statutory function of the Governor under Section 197 of the Criminal Procedure Code, and therefore, the ruling rendered in that context would not be applicable while considering the exercise of powers of the Governor under Article 161 of the Constitution of India. If it appears that the council of ministers have acted irrationally or have acted in non-consideration of relevant factors, it was the Court that has to exercise the power of judicial review in accordance with the ruling of Epuru Sudhakar Vs Government of AP case, and it was not open for the Governor to act in his discretion therein, he added.
He said that since the ruling in Maru Ram's case, it was clear that the Governor cannot act in his discretion and against the advice of the council of ministers while acting in exercise of his powers under Article 161 of the Constitution of India.
In its order, the bench said, "This Court finds that the ruling in the Perarivalan case, has merely reiterated the position of law laid down in the Constitution Bench ruling in the Maru Ram's case, and therefore, 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."
