Madras High Court
Mrs.E.Kalaiyarasi vs The State Represented By Its on 17 October, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
2024:MHC:3649
W.P.No.25832 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.10.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
W.P.No.25832 of 2024
Mrs.E.Kalaiyarasi ... Petitioner
Vs.
1.The State Represented by its,
The Principal Secretary to Government,
Home (Prison-IVA) Department, Secretariat,
Fort St. George,
Chennai – 600 009.
2.The Director General of Prisons,
Gandhi Irwin Road, CMDA Building,
2nd Tower, Egmore, Chennai – 600 008.
3.The Superintendent of Prison,
Central Prison at Palayamkottai,
Palayamkottai – 627 002. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying for the issuance of Writ of Certiorarified Mandamus, to call for the
records in impugned order G.O.(D).No.290, dated 07.03.2024, passed by the
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1st respondent and quash the same and directing the respondents to release
the father of petitioner / convict namely Mr.Eswaran @ Mareeswaran @
Kaleeswaran S/o. Samuthira Nadar (CT No.34) who is confining at 3 rd
respondent herein.
For Petitioner : Mr.M.Mohamed Saifulla
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
[Order of the Court is made by S.M.SUBRAMANIAM, J.]
Under assail is the order of rejection seeking premature release of the
convict prisoner issued in G.O.(D).No.290, dated 30.04.2024.
2. The petitioner is the daughter of life convict prisoner Mr.Eswaran @
Mareeswaran @ Kaleeswaran S/o. Samuthira Nadar (CT No.34), who is
confined at Central Prison, Palayamkottai. The prisoner was convicted under
Section 302 in two counts and he was sentenced to undergo double life
imprisonment and fine of Rs.1000 in default to undergo three years
imprisonment. Criminal Appeal filed by the prisoner was dismissed. The
prisoner is actually undergoing imprisonment for the past about 14 years.
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Thus, the application was submitted seeking premature release under the
scheme issued by the Government in G.O.Ms..No.430 Home (Prison-IV)
Department dated 11.08.2023. The said application was scrutinized and
processed by the Government.
3. It is not in dispute between the parties that the application for
premature release was scrutinised by the Government and duly recommended
by the State Committee. The recommendation of the State Committee was
approved by the Principal Secretary, Home Department, Secretary (Legal
Affairs) and Chief Secretary to the Government of Tamil Nadu. Thereafter, it
was circulated to State Cabinet decision and the State Cabinet approved the
recommendations of the State Committee and consequently the Hon’ble
Minister for Law and the Hon’ble Chief Minister approved the
recommendations. Finally it was circulated for the approval of the Hon’ble
Governor. The Governor has returned the dissenting note stating that “It is a
case of double murder by the convict. Remission would be premature and
prejudical to justice”.
4. The opinion of the Hon’ble Governor is that premature is running
counter to the terms stipulated under the scheme for remission. The convict
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prisoner had already undergone imprisonment for 14 years and therefore, the
scheme is to be considered with reference to its terms and eligibility criteria
and not based on the nature of offence for which the prisoner is convicted.
Once the scheme is applicable to a particular convict prisoner and it is
otherwise found eligible in accordance with the scheme and duly
recommended by the State Committee and approved by the State Cabinet, the
Hon’ble Governor is not empowered to take a dissenting view which is
running counter to the rules laid down in number of judicial decisions.
5. Question arises, whether such general opinion formed by the
Hon’ble Governor would be binding on the decision of the State Cabinet,
which is otherwise taken pursuant to the recommendations made by the State
Committee under the scheme of remission which is statutory in nature?
6. The reasons stated by the Hon’ble Governor that it is premature,
would not arise, since the scheme itself prescribed eligibility and the
petitioner is otherwise eligible under the scheme for submission of
application seeking premature release. While so, the opinion that the
application for premature release is premature, is not in consonance with the
terms and eligibility criteria stipulated under the scheme. That apart, the
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decision of the State Cabinet is binding on the Hon’ble Governor.
7. In this backdrop, we would like to consider the implications of the
dissenting opinion of the Hon’ble Governor counter to the decision taken by
State Committee as approved by the State Cabinet. The Law regarding the
powers of the Hon’ble Governor with reference to the decision taken by the
State Cabinet in the matter of premature release / remission has been settled
by the Three Judges Bench of the Hon’ble Supreme Court of India in the case
of A.G.Perarivalan vs. State through Superintendent of Police, CBI/SIT/
MMDA, Chennai1. The relevant paragraphs are extracted hereunder;
“18. The power to grant pardons, reprieves,
respites or remissions of punishment or to suspend,
remit or commute the sentence of any person convicted
of an offence against any law related to which the
executive power of the State extends is vested in the
Governor under Article 161 of the Constitution. Article
162 makes it clear that the executive power of the State
shall extend to matters with respect to which the
legislature of the State has power to make laws. Article
163 of the Constitution provides that there shall be a
Council of Ministers with the chief Minister at the head
to aid and advise the Governor in the exercise of his
1. (2023) 8 SCC 257
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functions, except in so far as he is by or under this
Constitution required to exercise his functions or any of
them in his discretion.
19. The limits within which the executive
Government can function under the Indian Constitution
can be ascertained without much difficulty by reference
to the form of the executive which our Constitution has
set up. Our Constitution, though federal in its
structure, is modelled on the British parliamentary
system where the executive is deemed to have the
primary responsibility for the formulation of
governmental policy and its transmission into law
though the condition precedent to the exercise of this
responsibility is its retaining the confidence of the
legislative branch of the State. The Governor occupies
the position of the head of the executive in the State but
it is virtually the Council of Ministers in each State that
carries on the executive Government. In the Indian
Constitution, therefore, we have the same system of
parliamentary executive as in England and the Council
of Ministers consisting, as it does, of the members of
the legislature is , like the British Cabinet, “a hyphen
which joins, a buckle which fastens the legislative part
of the State to the executive part”.
20. Under the cabinet system of Government as
embodied in our constitution the Governor is the
Constitutional or formal head of the State and he
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exercises all his powers and functions conferred on him
by or under the Constitution on the aid and advice of his
Council of Ministers, save in spheres where the
Governor is required by or under the Constitution to
exercise his functions in his discretion. Wherever the
Constitution requires the satisfaction of the President or
the Governor for the exercise of any power or function
by the President or the Governor, as the case may be, as
for example in Articles 123, 213, 311(2) proviso (c),
317, 352(1), 356 and 360, the satisfaction required by
the Constitution is not the personal satisfaction of the
President or of the governor but is the satisfaction of the
President or of the Governor in the constitutional sense
under the cabinet system of Government. It is the
satisfaction of the Council of Ministers on whose aid
and advice the President or the Governor generally
exercises all his powers and functions.
…………………..
24. The law laid down by this Court, as detailed
above, is clear and explicit. The advice of the State
Cabinet is binding on the Governor in matters relating
to commutation/remission of sentences under Article
161. No provision under the Constitution has been
pointed out to us nor any satisfactory response tendered
as to the source of the Governor’s power to refer a
recommendation made by the State Cabinet to the
President of India. In the instant case, the Governor
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ought not to have sent the recommendation made by the
State Cabinet to the President of India. Such action is
contrary to the constitutional scheme elaborated above.
It is relevant to point out that the recommendation made
by the State Cabinet was on 09.09.2018,which remained
pending before the Governor for almost two-and-a-half
years without a decision being taken. It was only when
this Court started enquiring about the reason for the
decision being delayed, the Governor forwarded the
recommendation made by the State Government for
remission of the appellant’s sentence to the President of
India………
………………..
38. 1. 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 powers under Article 161 of the
Constitution.
38.2. Non-exercise of the power under Article
161 or inexplicable delay in exercise of such power not
attributable to the prisoner is subject to judicial review
by this Court, especially when the State Cabinet has
taken a decision to release the prisoner and made
recommendations to the Governor to this effect.
38.3. The reference of the recommendation of the
Tamil Nadu Cabinet by the Governor to the President of
India two-and-a-half years after such recommendation
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had been made is without any constitutional backing
and is inimical to the scheme of our Constitution,
whereby “ the Governor is but a shorthand expression
for the State Government” as observed by this Court.
38.4. The judgment of this Court in M.P.Special
Police Establishment has no applicability to the facts of
this case and neither has any attempt been made to make
out a case of apparent bias of the State Cabinet or the
State Cabinet having based its decision on irrelevant
considerations, which formed the fulcrum of the said
judgment.
38.5. The understanding sought to be attributed
to the judgment of this Court in Sriharan with respect to
the Union Government having the power to
remit/commute sentences imposed under Section 302
IPC is incorrect, as no express executive power has
been conferred on the Centre either under the
Constitution or law made by Parliament in relation to
Section 302. In the absence of such specific
conferment, it is the executive power of the State that
extends with respect to Section 302 IPC, assuming that
the subject matter of Section 302 IPC is covered by List
III Entry 1.
38.6. Taking into account the appellant’s
prolonged period of incarceration, his satisfactory
conduct in jail as well as during parole,chronic ailments
from his medical records, his educational qualifications
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acquired during incarceration and the pendency of his
petition under Article 161 for two-and-a-half years after
the recommendation of the State Cabinet, we do not
consider it fit to remand the matter for the Governor’s
consideration. In exercise of our power under Article
142 of the Constitution, we direct that the appellant is
deemed to have served the sentence in connection with
Crime No.329 of 1991. The appellant, who is already
on bail, is set at liberty forthwith. His bail bonds are
called.”
8. Pertinently, in the case of the State of Haryana and others vs. Raj
Kumar @ Bittu2, the Hon’ble Apex Court reiterated that the power under
Article 161 of the Constitution can be exercised by the State Governments,
not by the Governor on his own. The advice of the appropriate Government
binds the Head of the State, which reads as under:
“12. Thus, the power under Article 161 of the
Constitution can be exercised by the State
Governments, not by the Governor on his own. The
advice of the appropriate Government binds the Head of
the State. No separate order for each individual case is
necessary but any general order made must be clear
enough to identify the group of cases and indicate the
2. 2021 (9) SCC 292
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W.P.No.25832 of 2024application of mind to the whole group. Therefore, the
policies of the State Government are composite policies
encompassing both situations under Article 161 of the
Constitution and Sections 432, 433 and 433-A of the
Code. The remission under Article 161 of the
Constitution will override Section 433-A of the Code,
if the State Government decides to be governed of its
constitutional power.
………………
19. Section 433-A of the Code starts with a non-
obstante clause restricting the right of the appropriate
Government, to suspend the sentence of imprisonment
for life imposed on conviction of a person for an
offence for which death is one of the punishments
provided by law, that such person shall not be released
from prison unless he has served at least 14 years of
imprisonment. Therefore, the power of the appropriate
Government to release a prisoner after serving 14 years
of actual imprisonment is vested with the State
Government. On the other hand, the power conferred on
the governor, though exercised on the aid and advice of
the State, is without any restriction of the actual period
of imprisonment undergone by the prisoner. Thus, if a
prisoner has undergone more than 14 years of actual
imprisonment, the State Government, as an appropriate
government, is competent to pass an order of premature
release, but if the prisoner has not undergone 14 years
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or more of actual imprisonment, the Governor has a
power to grant pardons, reprieves, respites and
remissions of punishment or to suspend, remit or
commute the sentence of any person dehors the
restrictions imposed under Section 433-A of the
Constitution. Such power is in exercise of the power of
the sovereign, though the Governor is bound to act on
the aid and advice of the State Government.”
9. Question arises, whether High Court in exercise of powers of
judicial review can interfere with the decision taken by the Hon’ble Governor
under Article 161 of the Constitution of India. The answer is found in the
case of Epuru Sudhakar and Another vs. Government of Andhra Pradesh
and other3, wherein, the Court held as follows:
“34. The position, therefore, is undeniable that
judicial review of the order of the President or the
Governor under Article 72 or Article 161, as the case
may be, is available and their orders can be impugned
on the following grounds:
a. that the order has been passed without application of
mind;
b. that the order is malafide;
3. 2006(8) SCC 161
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W.P.No.25832 of 2024c. that the order has been passed on extraneous or
wholly irrelevant considerations;
d. that relevant materials have been kept out of
consideration ;
e. that the order suffers from arbitrariness.”
10. Holistic reading and consideration of the principles settled by the
Apex Court of India, the question to be considered by this Court is whether
Hon’ble Governor is bound by State’s recommendations in the matter relating
to premature release or not?
11. 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 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.
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12. The power under Article 161 of the Constitution can be exercised
by the State Governments, not by the Governor on his own. The advice of
the appropriate Government binds the Head of the State. No separate order
for each individual case is necessary, but any general order made must be
clear enough to identify the group of cases and indicate the application of
mind to the whole group. Therefore, the policies of the State Government
are composite policies encompassing both situations under Article 161 of the
Constitution and Section 432, 433 and 433(A) of the Code. The remission
under Article 161 of the Constitution will override Section 433(A) of the
Code, if the State Government decides to be governed of its constitutional
Power.
13. The Judicial scrutiny on the Constitutional power to grant
remission by the Governor under Article 161 is also settled by the Courts. In
Epuru Sudhakar case cited supra, the principles are laid down that if the
order has been passed on extraneous or wholly irrelevant considerations or
relevant materials have been kept out of consideration, the Courts are
empowered to exercise the powers of judicial review for interference.
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14. The power of an appropriate Government to issue General or
Special orders allowing remissions is traceable under Section 432 Criminal
Procedure Code and the policies in question were framed in exercise of the
powers conferred on appropriate Government under Section 432 Criminal
Procedure Code 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.
15. In view of the fact that the dissenting note of the Hon’ble Governor
is not in consonance with the scheme formulated for premature release by the
Government and further the reasons are neither candid nor convincing, we
are inclined to remand the matter back for fresh consideration.
16. Accordingly, the impugned rejection order passed by the
Government in G.O.(D).No.290, Home (Prison-IV) Department dated
07.03.2024 is quashed and the matter is remanded back to the 1 st respondent
for re-circulation and for taking fresh decision on taking note of the legal
principles and pass appropriate orders as expeditiously as possible.
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17. With the above directions, the Writ Petition stands allowed. No
costs.
[S.M.S., J.] [V.S.G., J.]
17.10.2024
(2/2)
Index : Yes
Speaking order
Neutral Citation : Yes
Jeni
To
1.The Principal Secretary to Government,
The State,
Home (Prison-IVA) Department, Secretariat,
Fort St. George,
Chennai – 600 009.
2.The Director General of Prisons,
Gandhi Irwin Road, CMDA Building,
2nd Tower, Egmore, Chennai – 600 008.
3.The Superintendent of Prison,
Central Prison at Palayamkottai,
Palayamkottai – 627 002.
4.The Additional Public Prosecutor,
Madras High Court.
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S.M.SUBRAMANIAM, J.
AND
V.SIVAGNANAM, J.
Jeni
W.P.No.25832 of 2024
17.10.2024
(2/2)
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