Madras high court has reiterated a settled legal principle that the governor of a state is bound to act in accordance with the recommendations of the state cabinet in matters relating to the premature release of convicts, as per Article 161 of the Constitution.
“The law laid down by a catena of judgments of the high 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,” said a division bench of Justice S M Subramaniam and Justice V Sivagnanam on Friday.
The judges made the observations while disapproving of a decision of the Tamil Nadu governor to reject a recommendation of the state govt for the premature release of a life convict.
The power of an appropriate govt to issue general or special orders allowing remissions is traceable under Section 432 CrPC, and the policies in question are statutory in nature.
In the context of the above policy, the power under Article 161 can be exercised by the state govt and not by the governor on his own, the court clarified.
The issue pertains to a plea moved by Veera Bharathi, a 53-year-old life convict, seeking premature release. He was sentenced to death, along with two others, in 1999 by a Virudhnagar sessions court, for rape and murder.
On appeal, the high court commuted the death sentence to life. One among the accused, Ilangovan, was also released prematurely through a scheme.
Therefore, in 2024, he made an application to the state to release him prematurely. The application was considered by the state, and it recommended his premature release. However, the governor rejected the recommendation on the grounds that the lifer committed a heinous crime.
In view of the decision of the governor, the state issued a fresh order rejecting his application for premature release. Aggrieved, the petitioner approached the high court.
The petitioner argued that while the governor accepted the state govt’s decision to release a co-accused in the case, he chose to reject the request of the petitioner, who completed over 20 years of imprisonment.
“The nature of the crime is insignificant for consideration of premature release, which is done as per the govt’s policy,” he said.
Recording the submissions, the bench said: “We are of the considered opinion that the opinion formed by the governor may not be wholly relevant with reference to the commission of the offence by the petitioner in the case.”
The governor also did not consider the fact that the co-accused was already prematurely released, and it would be insufficient to merely reject an application for premature release on the ground of the offence, the court said.
The court further made it clear that premature release is not an absolute right and that mere fulfilment of conditions prescribed in the guidelines does not confer any right for the premature release of life convicts.
The court then remitted the application back to the state for fresh consideration.
