The Madras High Court recently held that the Governor is constitutionally bound to follow the decision taken by the State cabinet on allowing early release of life term convicts.
In an order passed on October 17, a bench of Justices SM Subramaniam and V Sivagnanam said the law laid down by the Supreme Court through several judgements makes it clear that the State cabinet’s advice is “binding on the Governor” when it comes to the latter exercising their power under Article 161 of the Constitution to release convicts.
“The law laid down by a catena of Judgments of this Court is well settled that the advice of the State Cabinet is binding on the Governor in the exercise of his power under Article 161 of the Constitution of India. It is held that non exercise of the Power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to the judicial to the review by the Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Hon'ble Governor to this effect. 12. The power under Article 161 of the Constitution can be exercised by the State Governments, not by the Governor on his own,” the Bench said.
The Court was hearing a petition filed by one Veera Bharathi, a convict serving a life sentence.
Bharathi had approached the Court challenging the Governor’s decision to reject his plea for premature release despite the fact that the Tamil Nadu government’s committee, headed by the Prisons DGP, had approved his release from the Puzhal prison in Chennai based on good conduct and also after taking into account the fact that he had already spent 20 years in prison.
Subsequently, the Law Minister and the TN Chief Minister had approved the recommendations of the State Committee for Bharathi’s premature release.
However, the Governor gave a contrary opinion saying Bharathi’s plea for early release deserved “no merit for consideration since the convict prisoner is a pedophile and he raped and killed a minor girl,” Bharathi’s counsel told the Court.
The Court held that the law regarding the powers of the Governor with reference to decision taken by the State Cabinet in the matter of premature release/remission has been settled by a three-judge bench of the Supreme Court in the case of AG Perarivalan vs State.
“The power under Article 161 of the Constitution can be exercised by the State Governments, not by the Governor on his own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary, but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. Therefore, the policies of the State Government are composite policies encompassing both situations under Article 161 of the Constitution and Section 432, 433 and 433(A) of the Code,” the High Court said.
Therefore, it allowed Bharathi’s petition and directed the TN government to “re-circulate the files” and take a decision afresh on merits.
Advocates R Sankara Subbu and D Mario Johnson appeared for Bharathi.
State Public Prosecutor Hasan Mohamed Jinnah and Additional Public Prosecutor E Raj Thilak appeared for the State and Police.
[Read Order]