Governor Bound By Cabinet's Recommendation On Premature Release Of Life Convict: Madras High Court

Justice SM Subramaniam and Justice V Sivagnanam observed that the power under Article 161 to is to be exercised by the State Government and not the Governor on his own. The bench added that the Governor was bound by the advice of the appropriate Government.

“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,” the court said.

The court added that the Tamil Nadu government had issued a Government Order in G.O.(Ms). No.430, Home (Prison-IV) Department setting out the eligibility criteria for premature release of life convicts. The court noted that this GO was statutory in nature as it was passed under Section 432 of the CrPC giving power to the State to suspend or remit sentences. The court thus held that the power of remission under Article 161 was to be exercised by the State Government and the Governor was bound by the decision of the State. 

“The power of an appropriate Government to issue General or Special orders allowing remissions is traceable under Section 432 Cr.P.C. and the policies in question were framed in exercise of the powers conferred on appropriate Government under Section 432 Cr.P.C. and hence, are statutory in nature. In the context of the above policy, the power under Article 161 can be exercised by the State Government, not by the Governor on his own. The advice of appropriate Government binds the Head of the State,” the court said.

The bench added that the courts were empowered to exercise powers of judicial review and interfere with such orders when it felt that the orders were passed on extraneous or wholly irrelevant considerations or relevant materials were kept out of consideration. The court thus came to the aid of a life convict whose application for remission was rejected by the Governor.

The court was hearing a petition filed by Veera Bharathi, a life convict who had completed 20 years of actual imprisonment. The trial court had imposed a death penalty on Bharathi which was modified into life sentence by the High Court and affirmed by the Supreme Court. Bharathi argued that his application for premature release was rejected while the benefit of pre-mature release was granted to a co-accused.

The state prosecutor informed the court that the state committee had recommended Bharathi's case for premature release and it was approved by the Deputy Secretary, the Principal Secretary, Home Department, the Secretary, Law Department, and the Chief Secretary. Thereafter the file was approved by the Minister for Law and the Chief Minister and was then circulated to the Governor for consideration. The Governor took a descending view and disapproved the recommendations of State Committee noting that Bharathi's case didn't deserve consideration since he was a pedophile and raped and killed a minor girl.

The court noted that in the order modifying the original sentence of death penalty, the High Court had observed that original murdered remained a mystery. The court thus held that when such a finding was rendered by the High Court, the opinion of the Governor was not relevant with reference to the commission of offence by Bharathi.

The court added that when the statutory scheme itself provided an eligibility criteria, raising a dobt regarding the offence had no implications. The court added that such a stand would dilute the scheme itself and defeat its purpose. The court was thus not convinced with the decision of the Governor.

“When the scheme is approved by the Government and is of statutory in nature, thereafter, raising any doubt regarding the offence proved would have no implication and thus, the extraordinary and exceptional circumstances must stand beyond the scrutiny of the scheme and in normal circumstances, such a stand would not only dilute the scheme of remission, but will defeat the scheme by itself,” the court observed.

However, noting that premature release was not an absolute right and was a scheme formulated by the State Government, the court decided to remand the matter back to the Government for recirculation and fresh consideration.

Counsel for Petitioner: Mr. R.Sankara Subbu for Mr. D.Mario Johnson

Counsel for Respondent: Mr.Hasan Mohamed Jinna, State Public Prosecutor, Assisted by Mr. E.Raj Thilak, Additional Public Prosecutor

Citation: 2024 LiveLaw (Mad) 391

Case Title: Veera Bharathi v The State of Tamil Nadu and Others

Case No: W.P.No.14908 of 2024

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