Chennai, Apr 2 (PTI) The Madras High Court on Thursday held that in matters relating to remission and premature release of convict 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 answering the reference made by a Division Bench earlier.

When a Division bench had took up Eswaran Vs State of Tamil Nadu case and eight other cases, for hearing, a plea was raised by the petitioners that their case for premature release had been considered by the State Cabinet and thereafter, the papers relating thereto 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 the above plea, the aforesaid Division Bench had noticed an apparent dichotomy in the views taken by two Division Benches of this Court in Veera Bharathi Vs State and Murugan @ Thirumalai Murugan Vs State. Ergo, the aforesaid Division Bench had framed two issues and directed the Registry to place the above 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 the two issues relating to as to whether the Governor was bound by the advice given by the council of ministers in matters relating to remission and premature release and if he was so bound, 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 Veera Bharathi case, had followed the ruling in A G Perarivalan Vs State through 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 exercise of his power under Article 161 of the Constitution of India and that per contra, another Division Bench, in Murugan @ Thirumalai Murugan case, had placed reliance on the ruling of the Constitution Bench in MP Special Police Establishment Vs State of MP and held that the same permits the Governor to act in his own discretion when, on facts, bias becomes apparent or the decision of the council of ministers was shown to be irrational and based on the non-consideration of relevant factors.

He said the judgment in 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 case. In Maru Ram, it was categorically held that the Governor was the formal head and sole repository of the executive power but was 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 added.

He said the question of law for consideration in MP Special Police Establishment case, was whether the Governor can act in his discretion and against the aid and advice of the council of ministers in a matter of grant of sanction for prosecution of ministers for offences under the Prevention of Corruption Act and/or under the Indian Penal Code. While deciding the said question, the Constitution Bench categorically held that when on facts, bias becomes apparent or the decision of the council of ministers was 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 MP Special Police Establishment case, the act of granting sanction by 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 ever 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 Perarivalan case, has merely reiterated the position of law laid down in the Constitution Bench ruling in 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.” PTI COR VGN KH