The advice of the State Cabinet is binding on the Governor regarding premature release under Article 161, and judicial review is available for arbitrary decisions.

ORDER :

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 pertaining to the impugned order G.O.(D).No.542, order dated 30.04.2024, issued by the 2nd respondent and to quash the same and consecutively direct the respondents to release the detenue, Karunakaran, S/o.Swaminathan, aged about 67 years, bearing Convict No.98913, now confined at Central Prison, Trichy, prematurely as per the G.O.(Ms).No.488, dated 15.11.2021.

Under assail is the order of the Government issued in G.O.(D).No.542, Home (Prison-IV) Department dated 30.04.2024.

2. The petitioner is the wife of the convict prisoner Mr.Karunakaran, S/o.Swaminathan, aged about 67 years, bearing Convict No.98913, now confined at Central Prison, Trichy. It is not in dispute that the prisoner is in actual imprisonment for the past about 14 years. He was convicted to undergo life sentence. The petitioner submitted an application seeking premature release of the convict prisoner under the scheme formulated by the Government in G.O.Ms.No.488, Home (Prison-IV) Department dated 15.11.2021. The said application was scrutinized and processed by the Government.

3. It is not in dispute between the parties that the State Level Committee recommended the case of the prisoner for premature release. The recommendation of the State Committee was approved by the Additional Chief Secretary, Secretary (Legal Affairs) and Chief Secretary to the Government of Tamil Nadu. Thereafter, the file was circulated and State Cabinet approved the recommendation of the State Committee and Hon'ble Minister for Law and the Hon'ble Chief Minister approved the recommendation. Finally, the file was circulated to the Hon'ble Governor. The Hon'ble Governor in his dissenting note formed an opinion that “Remission would be premature and prejudicial to justice”.

4. 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?

5. 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 or 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.

6. 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, Chennai, (2023) 8 SCC 257. 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 functions, except in so far as he is by or under this Cons