The Governor's dissenting opinion on premature release is not binding if it contradicts the State Cabinet's recommendations under Article 161 of the Constitution.

ORDER :

[Order of the Court is made by S.M.SUBRAMANIAM, J.]

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 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 3rd respondent herein.

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.

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 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 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