Holding that the Governor has discretion in the matters pertaining to remission and premature release of convicts, a Full Bench of the Madras High Court on Thursday made it clear that the gubernatorial occupant is bound by the advice of the State Cabinet.
The three-Judge bench, comprising Justices AD Jagadish Chandira, GK Ilanthiraiyan and Sunder Mohan, answering a reference made by a Division Bench, held that whether the Governor likes it or not, he/she is bound by the advice of the Council of Ministers while exercising powers vested under Article 161 of the Constitution in deciding remission and premature release of convicts. The Bench observed that under no circumstance could the Governor exercise any discretion whatsoever to take a contrarian view.
Earlier in September 2025, a Division Bench comprising Justices MS Ramesh, now retired, and V Lakshminarayanan, had referred the matter to a larger Bench for an authoritative pronouncement when two conflicting decisions were delivered by two other Division Benches. While one of the Division Benches correctly followed the law, the other erred in relying on the 2003 Supreme Court verdict in the MP Special Police Establishment case, pertaining to the grant of permission in cases relating to corruption under the IPC.
Concurring with State Public Prosecutor Hasan Mohamed Jinnah and advocate M Radhakrishnan, the three-Judge Bench held that the issue had been settled way back in 1980 by a Constitution Bench comprising Justices VR Krishna Iyer, YV Chandrachud and PN Bhagwati and two others. That judgment, delivered in the Maru Ram case, had been adhered to in 2022 as well in the release of AG Perarivalan, convict in the Rajiv Gandhi assassination case, Jinnah submitted. Further, he also relied upon the Supreme Court’s verdict in Shamsher Singh Vs Punjab delivered in 1974.
The Bench observed that the Supreme Court has consistently held that Governors have no discretion while exercising powers under Article 161, as reflected in its recent judgment on Governors withholding Bills passed by state legislatures. It further noted that the Perarivalan case was adjudicated by the apex court, taking into account the MP Special Police Establishment case, which accords limited discretion.
Accordingly, the Full Bench, led by Justice Chandira, held that the decision of one of the Division Benches, based on the MP Special Police Establishment case, was per incuriam (a ruling passed on an incorrect application of law). It also held that the Governor is bound by the advice tendered by the Council of Ministers.