CHENNAI: In a significant judgment, affirming the authority of the state government in deciding on remission and premature release of convict prisoners, the Madras High Court has held that the governor cannot take a view contrary to the decision of the government because he is bound by the advice of the council of ministers under Article 161 of the Constitution.
A full bench, comprising justices A D Jagadish Chandira, G K Ilanthiraiyan and Sunder Mohan, pronounced the verdict on Thursday while answering a reference made to it on the issue following different views taken by the benches.
One division bench had held that the advice of the cabinet binds the governor under Article 161 of the Constitution, while the other bench held that the governor can act on his own discretion.
The issues under the reference were whether the governor is bound by the advice of the council of ministers in matters relating to remission and premature release? And if he is so bound, under what circumstances, does the governor have the discretion to take a view different from the one by the council of ministers.
“This court answers both issues under reference cumulatively by holding that while exercising powers under Article 161 of the Constitution, in matters relating to remission and premature release of convict prisoners, the governor is bound by the advice of the council of ministers regardless of whether he likes that advice or not,” the bench said in the order.
It further held, “Under no circumstance the governor can exercise discretion to take a different view from the one taken by the council of ministers.”
Citing various orders of the Supreme Court, the bench noted that in Maru Ram case, it was categorically held that the governor was 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, regardless of whether he likes it or not.
Referring to the differing judgment that the governor can exercise his discretion going by the Constitution bench judgment in MP Special Police Establishment case, the full bench noted that this judgment was related to according sanction, under Section 197 of CrPC, to prosecute public servants and not on matters under Article 161 of the Constitution.
Citing the pronouncements in the case relating to assent, withholding or reservation of bills by the governor and the President, the bench explained that the question of whether the governor can act in his discretion and against the advice of the cabinet, in exercise of his powers under Article 161 of the Constitution, is no longer res integra (an entirely new or untouched matter).
State Public Prosecutor (PP) Hasan Mohamed Jinnah, assisted by Additional PP E Raj Tilak and Government Advocate S Santhosh, represented the state.