Is Governor Bound By Advice Of Council Of Ministers In Matters Of Remission & Premature Release? Madras High Court Refers To Larger Bench

The bench of Justice MS Ramesh and Justice V Lakshminarayanan has directed the registry to place the matter before the Chief Justice for constituting a larger bench. The bench thought it fit to refer the matter to the larger bench after coming across two differing opinions of coordinate benches on the issue. The bench thus ordered as under,

'We direct the Registry to place these matters before My Lord, Hon'ble The Chief Justice to constitute a Larger Bench to decide the following issues, if he so desires:

(i)Whether His Excellency The Governor is bound by the advise given by the Council of Ministers in matters relating to remission and premature release;

(ii)If he is so bound, under what circumstances does the Governor have the discretion to take a view different from that taken by the Council of Ministers,'

The court was hearing a batch of petitions relating to the premature release of convicts. When the matters were taken up, the petitioner's counsel submitted that the case for premature release had been considered by the state and the release was recommended at the highest level of the state, but was rejected by the governor. Relying upon the Supreme Court's decision in AG Perarivalan's case, he argued that the Governor was bound by the advice of the Council of Ministers.

On the other hand, the additional public prosecutor informed the court about another decision of the Madurai bench of the Madras High Court, which had relied on the constitution bench decision of the Supreme Court in M.P. Special Police Establishment v. State of MP, where the court had held that the governor could exercise his discretion and reject a proposal for premature release, if the council of ministers had not considered the relevant factors.

Since there was a conflict of opinions, the court thought it fit to refer the matter to the larger bench.

Case Title: Eswaran and others v. The State

Case No: W.P.Nos.31478 of 2024, 107, 127, 267, 777, 2208, 13778 & 19566 of 2025