Governor bound to act as per Cabinet suggestions: Madras High Court

The governor is constitutionally bound to follow decisions of the state cabinet on allowing early release of convicts serving a life term, the Madras high court said.

A bench of justices SM Subramaniam and V Sivangnanam, in an order on October 17, said that the law laid down through several rulings of the Supreme Court makes it clear that the state cabinet’s advice is “binding on the Governor” when it comes to the latter exercising their power under Article 161 of the Constitution to release convicts.

“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…The Judicial scrutiny on the Constitutional power to grant remission by the Governor under Article 161 is also settled by the Courts,” the court said in the order released on Sunday.

The court was hearing a petition filed by 53-year-old Veera Bharathi, who is serving a life sentence in a case of rape and murder. Bharathi was sentenced to death, along with two others, in 1999.

On appeal, the high court commuted the death sentence to life. One of the accused, Ilangovan, was also released prematurely. Earlier this year, Bharathi approached the state for a similar release.

Bharathi approached the court challenging the governor’s decision to reject his plea for premature release despite the state government approving the release of a co-accused in the case. He also cited the fact that he had already spent 20 years in prison.

Public prosecutor Hasan Mohamed Jinna submitted documents to show that the petitioner’s eligibility for premature release is not in dispute.

The state committee recommended the case of the petitioner for premature release, and the file was circulated to the home and law departments, and the state chief secretary who then forwarded it to the chief minister.

Once it reached the governor, he “opined that the case of the petitioner deserves no merit for consideration since the convict prisoner is a pedophile and he raped and killed a minor girl”, the public prosecutor told the court.

Since a high court found that who killed the girl is a mystery the accused’s sentence was reduced from death penalty to imprisonment. “When such a finding is the reason for reduction of sentence, we are of the considered opinion that the opinion formed by the Hon’ble Governor may not be wholly relevant with reference to the commission of offence by the petitioner in the present case,” the court said.

The court also clarified that premature release is not a guaranteed right and mere fulfilment of conditions prescribed in the guidelines does not confer any right for the premature release of life convicts.

The bench allowed Bharathi’s petition and directed the state government to “recirculate the files” and take a decision afresh on the merits.