Governor Bound By Council Of Ministers' Advice On Remission & Premature Release Of Convicts: Madras High Court Full Bench

Answering a reference made to it, the bench of Justice AD Jagadish Chandira, Justice GK Ilanthiraiyan and Justice Sunder Mohan held that the governor is bound by the decision of the council of ministers, whether he likes it or not and under no circumstances can the Governor take a different view.

“In the light of the above discussion, this Court answers both the issues under reference cumulatively by holding that while exercising powers under Article 161 of the Constitution of India in matters relating to remission and premature release of convict prisoners, 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 bench held.

The court was answering a reference made to it by a division bench last year. The division bench was hearing a batch of petitions relating to the premature release of convicts. When the matters were taken up, the petitioner's counsel submitted that the case for premature release had been considered by the state and the release was recommended at the highest level of the state, but was rejected by the governor. Relying upon the Supreme Court's decision in AG Perarivalan's case, he argued that the Governor was bound by the advice of the Council of Ministers.

On the other hand, the additional public prosecutor informed the court about another decision of the Madurai bench of the Madras High Court, which had relied on the constitution bench decision of the Supreme Court in M.P. Special Police Establishment v. State of MP, where the court had held that the governor could exercise his discretion and reject a proposal for premature release, if the council of ministers had not considered the relevant factors.

Since there was a conflict of opinions, the court thought it fit to refer the matter to the larger bench and framed the following question for reference:

(i)Whether His Excellency the Governor is bound by the advise given by the Council of Ministers in matters relating to remission and premature release;

(ii)If he is so bound, under what circumstances does the Governor have the discretion to take a view different from that taken by the Council of Ministers,'

The full bench held that in the position of law was laid down by the Constitution bench in the case of Maru Ram v. Union of India, wherein it was categorically held that the Governor was a formal head and was incapable of acting except on and according to the advice of the Council of Ministers, regardless of whether the Governor likes the advice or not.

The court held that the decision of the Madurai bench, which had relied on the decision of the Supreme Court in M.P. Special Police Establishment v. State of MP, was per incuriam. The court noted that in the MP Special Police Establishment case, the question of law was whether the Governor could act in his discretion in matters of granting sanction to prosecute Ministers for offences under the Prevention of Corruption Act or under the IPC. The court noted that in such circumstances, the constitution bench had held that when there was apparent bias by the Council of Ministers or a decision of the Council was irrational and based on non-consideration of relevant factors, the Governor could act on his own discretion and grant sanction.

The court observed that there was no conflict between the ratios laid down in Perarivalan's case and in the MP Special Police Establishment case. The court thus concluded that, as per the law laid down in Maru Ram's case, which was followed in Perarivalan's case, the Governor was bound by the decision of the Council of Ministers.

Counsel for Petitioner: Mr. M. Mohamed Saifulla, Mr. D. Mario Johnson for Mr. R. Sankarasubbu, Ms. S. Nadhiya, Mr. M. Murugesan and Ms. M. Madhumitha for Mr. S. Arivazhagan, Dr. S. Manoharan, Mr. M. Radhakrishnan for Mr. P. Pugalenthi

Counsel for Respondent: Mr. Hasan Mohamed Jinnah State Public Prosecutor assisted by Mr. E. Raj Thilak Addl. Public Prosecutor Mr. S. Santhosh Govt. Adv. (Crl. Side) Ms.V. Sumi Arnica Mr. S. Arun Pandi and Mr. A. Mohammed Imran

Case Title: Eswaran v The State and others

Citation: 2026 LiveLaw (Mad) 140

Case No: W.P. Nos.31478 of 2024, etc