Indian Kanoon - Search engine for Indian Law

3. On 24.02.2014, the Union of India filed a writ petition for quashing the communication from the State of Tamil Nadu dated 19.02.2014 and its decision to consider commutation / remission of the sentence imposed on the Appellant and 3 | Page some others. The writ petition was referred to a Constitution Bench of this Court by order dated 25.04.2014, after formulating seven questions for consideration. By a judgment dated 02.12.2015, this Court answered the questions that were framed for consideration in Union of India v. Sriharan1.

11. Mr. K. M. Natraj, learned Additional Solicitor General of India, submitted that the appropriate Government in the matter of remission / commutation in the present case is the Union of India. He sought support from certain passages of the judgment of this Court in Sriharan (supra) and argued that the Governor rightly referred the recommendation made by the State Cabinet, as it is only the President of India who can take a decision on the remission / commutation of the sentence of the Appellant. He further contended that the Governor was not always bound by the advice of the Council 8 | Page of Ministers and there were recognised exceptions to the said rule where the Governor is required to act in his own discretion. For the said proposition, he relied upon a judgment of this Court in M.P. Special Police Establishment v. State of M.P.2, wherein it was held that on those occasions where on facts the bias of the Council of Ministers became apparent and / or the decision of the Council of Ministers is shown to be irrational and based on non-consideration of relevant factors, the Governor would be right, on the facts of that case, to act in his own discretion and grant sanction. He made an attempt to convince this Court that the point canvassed by the Appellant pertaining to the reference of the recommendations of the State Cabinet to the President of India is beyond the scope of the writ petition and, therefore, should not be entertained.

18. By following the dictum in Samsher Singh v. State of Punjab7, this Court in Maru Ram (supra) further held that in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. The constitutional conclusion is that the Governor is but a shorthand expression for the State Government.

19. The law laid down by this Court, as detailed above, is clear and explicit. The advice of the State Cabinet is binding on the Governor in matters relating to commutation / remission of sentences under Article 161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the 7 (1974) 2 SCC 831 14 | P a g e Governor’s power to refer a recommendation made by the State Cabinet to the President of India. In the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President of India. Such action is contrary to the constitutional scheme elaborated above. It is relevant to point out that the recommendation made by the State Cabinet was on 09.09.2018, which remained pending before the Governor for almost two and a half years without a decision being taken. It was only when this Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission of the Appellant’s sentence to the President of India.

15 | P a g e of A.P.8. Given petitions under Article 161 pertain to the liberty of individuals, inexplicable delay not on account of the prisoners is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner, especially when the State Cabinet has taken a decision to release the prisoner by granting him the benefit of remission / commutation of his sentence.

21. The learned Additional Solicitor General, on the basis of the judgment of this Court in M.P. Special Police Establishment (supra), argued that an irrational decision of the Cabinet can be examined by the Governor in his discretion to come to a different conclusion. Grant of sanction for prosecution under Section 197, CrPC against two Ministers of the Government of Madhya Pradesh was the subject matter of the said case. On the basis of a complaint made to the Lokayukta for illegal release of lands, the Lokayukta investigated and submitted a report stating that there were sufficient grounds for prosecuting the two Ministers under the Prevention of Corruption Act, 1988. The Council of Ministers took a decision no material was available against both the Ministers for grant of sanction. However, the Governor was of the opinion that a prima facie case for 8 (2006) 8 SCC 161 16 | P a g e prosecution was made out and granted sanction. Writ petitions were filed under Article 226 of the Constitution by the aggrieved Ministers on the ground that the Governor could not have acted in his discretion within the meaning of Article 163 of the Constitution. A single Judge of the High Court of Madhya Pradesh allowed the writ petitions of the Ministers by concluding that granting sanction for prosecuting the Ministers was not a function which could be exercised by the Governor ‘in his discretion’ and the Governor could not have acted contrary to the aid and advice of the Council of Ministers. This decision was upheld by the Division Bench of the High Court, aggrieved by which appeals were filed before this Court. This Court reversed the judgment of the High Court and held that while the matter of sanction for prosecution is on the aid and advice of the Council of Ministers and not at the discretion of the Governor in normal circumstances, an exception may arise on the grant of sanction to prosecute either a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion. It was noted by this Court that a relevant consideration such as the report of the Lokayukta was absent in the mind of the Council of Ministers while refusing to grant sanction and such refusal to take into 17 | P a g e consideration a relevant fact or orders passed on the basis of irrelevant and extraneous factors not germane to the purpose of arriving at the conclusion would vitiate an administrative order. In such cases, this Court was of the opinion that the Governor can act in his own discretion, or else, there would be a complete breakdown of the rule of law.