Governor bound by Cabinet’s advice: Madras High Court

A Full Bench (comprising three judges) of the Madras High Court, on Thursday (April 2, 2026), held that the Governor, whether he/she likes it or not, is bound by the advice of the council of Ministers while exercising powers under Article 161 of the Constitution in matters relating to remission and premature release of convicts.

The Bench comprising Justices A.D. Jagadish Chandira, G.K. Ilanthiraiyan and Sunder Mohan also ruled the Governor, under no circumstance, could exercise any discretion whatsoever to take a different view from the one taken by the council of Ministers. The Bench was answering a reference made to it by a Division Bench.

The Division Bench consisting of Justices M.S. Ramesh (since retired) and V. Lakshminarayanan had referred the matter to the larger Bench, for an authoritative pronouncement, in September 2025 after coming across two conflicting decisions delivered in 2024 by two other Division Benches of the High Court on the issue.

While answering the reference, the Full Bench agreed with State Public Prosecutor Hasan Mohamed Jinnah and advocate M. Radhakrishnan that the issue had been settled by a Constitution Bench of Justices V.R. Krishna Iyer, Y.V. Chandrachud, P.N. Bhagwati, Syed Murtaza Fazalali and A.D. Koshal of the Supreme as early as in 1980.

Mr. Jinnah also said, the 1980 judgement delivered in Maru Ramu’s case was followed by the Supreme Court in 2022 too while ordering the release of former Prime Minister Rajiv Gandhi assassination case convict A.G. Perarivalan. He also relied upon Supreme Court’s 1974 verdict in Shamsher Singh versus State of Punjab.

After concurring with his submission, the Full Bench said, the top court had consistently held the Governor could not exercise any discretion while exercising powers under Article 161 of the Constitution and it had been reflected even in its recent decision on the Governor’s power to withhold Bills passed by the State legislature.

One of the Division Benches of the High Court had rightly followed the law, while the other Bench had wrongly relied upon the Supreme Court’s judgment in the 2003 M.P. Special Police Establishment case which was related to the Governor’s statutory function of granting sanction to prosecute Ministers in corruption cases.

The Full Bench further pointed out the Supreme Court had delivered its verdict in A.G. Perarivalan’s case only after considering the M.P. Special Police Establishment case.

“Therefore, it is clear that the ruling (by one of the Division Benches of the High Court) in Murugan alias Thirumalai Murugan is per incuriam (a judgement passed without taking the correct position of law into consideration) to the limited extent that it holds that the ruling in M.P. Special Police Establishment permits the Governor to act in his own discretion in exercise of powers under Article 161 of the Constitution,” the Bench led by Justice Chandira concluded.