Governor in exercise of powers under Art. 161, held, is bound by advice of State Cabinet in matters relating to commutation and remission of sentences.

The Appellant was 19 years of age at the time of his arrest and has been incarcerated for 32 years, out of which he has spent 16 years on the death row and 29 years in solitary confinement. There has been no complaint relating to his conduct in jail. On the two occasions that the Appellant had been released on parole, there had been no complaint regarding his conduct or breach of any condition of release. Medical records, filed on behalf of the Appellant, show that he is suffering from chronic ailments. Apart from his good behaviour in jail, the Appellant has also educated himself and successfully completed his +2 exams, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses and his petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence.

Summarised findings of the case:

  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.
  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.
  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 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.
  4. The judgment of this Court in M.P. Special Police Establishment (supra) 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 9 Maru Ram v. Union of India (supra) the State Cabinet having based its decision on irrelevant considerations, which formed the fulcrum of the said judgment.
  5. The understanding sought to be attributed to the judgment of this Court in Sriharan (supra) 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 the 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, assuming that the subject-matter of Section 302 is covered by Entry 1 of List III.
  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 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 cancelled.

[A.G. Perarivalan v. State of T.N., (2023) 8 SCC 257]

 

Case comment:

In its judgment, the Supreme Court’s three-judge bench led by the Chief Justice of India, D.Y.Chandrachud and comprising Justices J.B. Pardiwala and Manoj Misra, held that in a Parliamentary form of democracy, real power rests in the elected representatives of the people and that the Governor, as an appointee of the President, is the titular head of State. The bench clarified that the Governor acts on the “aid and advice” of the Council of Ministers, save and except in those areas where the Constitution has entrusted the exercise of discretionary power to the Governor. State of Punjab vs Principal Secretary to the Governor of Punjab and Another, delivered on November 10,

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