Governor Is Bound by Cabinet Advice on Remission: Madras HC Full Bench Rules

Case: Batch of writ petitions including Eswaran v. State of Tamil Nadu (and connected matters)

Court: Madras High Court (Full Bench)

Bench: Justice A.D. Jagadish Chandira (author), Justice G.K. Ilanthiraiyan, and Justice Sunder Mohan Key Provisions: Article 161 and Article 163 of the Constitution | Article 226

Introduction

Can a Governor of a State simply refuse to act on the Cabinet's recommendation for remission of a life convict? Can the Governor sit on the file indefinitely, or reject the recommendation outright, because he personally disagrees with the decision?

A Full Bench of the Madras High Court, comprising three judges, answered these questions on 2 April 2026 with clarity and firmness. The Governor has no independent discretion in matters of remission and premature release under Article 161 of the Constitution. The Governor is bound by the aid and advice of the Council of Ministers. Under no circumstance can the Governor take a position different from the one taken by the Cabinet.

This judgment is part of a growing line of constitutional decisions that define the role of the Governor in India's parliamentary democracy.

Background: How the Case Arose

Life convicts in Tamil Nadu had applied for premature release after serving the minimum period of imprisonment required under the applicable remission policy. The State Cabinet had recommended their premature release to the Governor. The relevant government orders (G.O. (Ms.) No. 430 of 2023 and G.O. (Ms.) No. 488 of 2021) had been issued by the Cabinet under the applicable policy.

Despite the Cabinet's recommendation, the Governor either rejected the proposals or failed to act on them at all. The convicts and their families filed writ petitions before the Madras High Court under Article 226 of the Constitution, seeking directions to implement the Cabinet's recommendation.

While hearing these petitions, the Division Bench noticed that two earlier Division Benches of the Madras High Court had taken conflicting positions on the same question:

• One Division Bench (Veera Bharathi v. State) had correctly followed the Supreme Court's judgment in AG Perarivalan v. State of Tamil Nadu and held that the Governor is bound by Cabinet advice.
• Another Division Bench (Murugan @ Thirumalai Murugan v. State) had relied on the Supreme Court's 2003 judgment in M.P. Special Police Establishment v. State of M.P. and held that the Governor retains limited discretion in remission matters.

These two positions were directly contradictory. In September 2025, a Division Bench of Justices M.S. Ramesh and V. Lakshminarayanan referred the matter to a Full Bench for an authoritative ruling.

The Core Constitutional Framework: Articles 161 and 163

Before examining the Full Bench's ruling, it is essential to understand the constitutional provisions at stake.

Article 161: The Governor's Pardoning Power

Article 161 vests in the Governor of every State the power to grant pardons, reprieves, respites, or remissions of punishment, and to suspend, remit, or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

The forms of clemency under Article 161 are:

• Pardon: Completely absolves the convict of the offence and punishment
• Commutation: Changes the nature of punishment to a lesser form
• Remission: Reduces the quantum of punishment without changing its nature
• Reprieve: Temporary postponement of punishment
• Respite: Awarding a lesser punishment in special circumstances

Article 163: The Obligation to Act on Cabinet Advice

Article 163(1) 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 the Governor is required to exercise functions in his discretion.

The exceptions where the Governor may act in his discretion are strictly limited and specific, such as certain situations in the appointment of the Chief Minister or dismissal of the government.

Remission of sentences under Article 161 is not one of those excepted areas. It is a function where the Governor must act on the aid and advice of the Council of Ministers.

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Article 72: The Presidential Analogue

Article 72 confers on the President similar pardoning powers at the Union level: pardon, reprieve, respite, remission, or commutation for offences against Union law, for court-martial sentences, and for death sentences.

The key distinction between Articles 72 and 161:

The Binding Supreme Court Precedents

The Full Bench resolved the conflict by carefully analysing the chain of Supreme Court authority on this question.

Maru Ram v. Union of India (1981) 1 SCC 107

This is the foundational Constitution Bench judgment on Article 72 and Article 161. A five-judge bench comprising Justices V.R. Krishna Iyer, Y.V. Chandrachud, P.N. Bhagwati, Syed Murtaza Fazal Ali, and A.D. Koshal held that the power to grant remission under Articles 72 and 161 is not a personal prerogative of the President or Governor. It must be exercised on the advice of the appropriate government, not in their individual capacity.

The Court held that the Governor's exercise of power under Article 161 is conditioned by the aid and advice of the Council of Ministers under Article 163. The President's and Governor's clemency powers are not matters of personal grace but constitutional functions to be performed in accordance with the advice of the elected government.

Shamsher Singh v. State of Punjab (1974) 2 SCC 831

A seven-judge Constitution Bench held that in a parliamentary democracy, the constitutional executive heads (the President and Governors) are required to act on the aid and advice of the Council of Ministers. This principle is fundamental to India's parliamentary system. Constitutional heads are formal, not real, executives.

Epuru Sudhakar v. Government of Andhra Pradesh (2006) 8 SCC 161

The Supreme Court held that judicial review of clemency decisions under Articles 72 and 161 is available. If a remission order is arbitrary, based on irrelevant considerations, mala fide, or discriminatory, courts can strike it down. Conversely, if the Governor refuses to act on a legitimate Cabinet recommendation without any constitutional basis, that refusal is also subject to judicial review.

Importantly, the Court in Epuru Sudhakar also held that the appropriate remedy for challenging a potentially arbitrary Cabinet recommendation is judicial review, not independent discretion by the Governor.

A.G. Perarivalan v. State of Tamil Nadu (2022) 8 SCC 209

This is the most directly relevant and recent Supreme Court precedent. A three-judge bench, in the context of the Rajiv Gandhi assassination case convict A.G. Perarivalan, held that the Tamil Nadu Cabinet's recommendation for remission under Article 161 was binding on the Governor. When the Governor sat on the file for years without acting and then referred the matter to the President, the Supreme Court stepped in under Article 142 to grant remission directly.

The Court held that the Governor cannot sit on the file indefinitely, and that once the Cabinet had made its recommendation, the Governor had no power to act contrary to it or to refer it to the President in a case involving state law.

In Re: Assent, Withholding or Reservation of Bills by the Governor (2026)

A Constitution Bench of the Supreme Court, in this very recent 2026 judgment dealing with the Tamil Nadu Governor's withholding of Bills, reiterated the constitutional restriction placed by Cabinet advice on the Governor's powers. The Bench held that in matters of the executive functions of the State, the Governor acts on the aid and advice of the Cabinet and has no independent discretion to withhold or block government action.

The Full Bench of the Madras High Court noted that this 2026 Constitution Bench decision directly reinforced the Perarivalan reasoning and confirmed the settled constitutional position.

Why the MP Special Police Establishment Case Did Not Apply

The Division Bench in Murugan @ Thirumalai Murugan had relied on M.P. Special Police Establishment v. State of M.P. (2004) 8 SCC 788 to hold that the Governor could exercise independent discretion in remission matters.

The Full Bench rejected this reliance emphatically.

The M.P. Special Police Establishment judgment dealt with the statutory power of the State government to grant sanction for prosecution of public servants under Section 197 CrPC (now Section 218 BNSS). The Governor in that case had refused to grant sanction, contrary to the Cabinet's advice, on the ground that the Cabinet's decision was vitiated by mala fides.

The Full Bench noted three critical distinctions:

1. Nature of power: M.P. Special Police Establishment dealt with a statutory power under the CrPC, not a constitutional power under Article 161. The legal principles governing the two are entirely different.

2. Perarivalan's clarification: The Supreme Court in the Perarivalan case had expressly addressed the M.P. Special Police Establishment decision at paragraph 29 and distinguished it, holding that it had no application to the constitutional power under Article 161.

3. Statutory vs. constitutional: A precedent on statutory discretion cannot be imported to modify the exercise of a constitutional power that is explicitly made subject to Cabinet advice under Article 163.

The Full Bench therefore held that the Division Bench in Murugan @ Thirumalai Murugan had erroneously applied M.P. Special Police Establishment to a constitutional question where it had no relevance. That Division Bench's decision was per incuriam.

What the Full Bench Held

1. The Governor Has No Independent Discretion in Article 161 Matters

The Full Bench held, without any qualification: "The Governor is bound by the advice of the Council of Ministers regardless of whether the Governor likes that advice or not and under no circumstance can the Governor exercise discretion to take a different view from the one taken by the Council of Ministers."

2. The Governor Cannot Sit on the File Indefinitely

Drawing from the Perarivalan precedent, the Full Bench held that the Governor cannot simply not act on a Cabinet recommendation. Sitting on the file, delaying action, or effectively rendering the Cabinet's recommendation meaningless through inaction is itself a constitutional violation.

Once the Cabinet makes a recommendation under Article 161, the Governor must act on it. The Governor does not have a veto power. The Governor does not have a power of indefinite delay.

3. Judicial Review Is the Correct Check on Cabinet Decisions

The Full Bench acknowledged that Cabinet decisions on remission are not beyond scrutiny. If a Cabinet recommendation for premature release is alleged to be arbitrary, mala fide, or based on extraneous considerations, the remedy lies in judicial review before constitutional courts.

What the Governor cannot do is personally substitute their own judgment for the Cabinet's judgment. The constitutional check on Cabinet decisions is the judiciary, not the Governor acting independently.

4. The Division Bench Decision in Murugan @ Thirumalai Murugan Is Per Incuriam

The Full Bench expressly held that the Murugan Division Bench's decision, which had relied on M.P. Special Police Establishment to accord limited discretion to the Governor in Article 161 matters, was per incuriam. It had failed to notice the binding three-judge bench decision in Perarivalan, which had directly addressed and distinguished M.P. Special Police Establishment in this very context.

The Broader Constitutional Significance

It Settles Conflicting Views Within the Madras High Court

Two Division Benches had taken irreconcilably different positions. The Full Bench reference mechanism, used correctly here, provides a binding authoritative answer for all future benches of the Madras High Court.

It Reinforces India's Parliamentary System

The judgment is rooted in parliamentary democracy's foundational principle: the Governor is the formal constitutional head, but real executive authority lies with the elected Cabinet. A Governor who acts independently on matters of state governance undermines responsible government. This principle runs from Shamsher Singh (1974) through Maru Ram (1981) to Perarivalan (2022) to this 2026 ruling.

It Protects Life Convicts' Legitimate Expectations

Life convicts who have served the minimum required period and whose release has been recommended by the Cabinet after due deliberation have a legitimate expectation that the constitutional process will work as intended. A Governor who obstructs this process without constitutional authority deprives them of their liberty without lawful basis.

It Connects to the Larger Debate on Governor's Role

This judgment is part of a broader constitutional conversation in India about the Governor's role in a parliamentary democracy. Similar questions have arisen about Governors withholding Bills, delaying assent, or acting against elected governments. The Full Bench's ruling, grounded in a consistent chain of Supreme Court authority, firmly places remission decisions within the space where the Governor must act on Cabinet advice.

Conclusion

The Madras High Court's Full Bench judgment on 2 April 2026 is a firm statement of constitutional principle. The Governor of a State is not a parallel authority to the elected government. In matters of remission and premature release, the Governor's role is to give effect to the Cabinet's decision, not to substitute personal judgment for it.

Frequently Asked Questions

Q1. What did the Madras High Court Full Bench decide on 2 April 2026?

A Full Bench of Justices Jagadish Chandira, Ilanthiraiyan, and Sunder Mohan held that the Governor of a State has no independent discretion in matters of remission and premature release under Article 161. The Governor is bound by the advice of the Council of Ministers regardless of personal disagreement, and cannot reject or indefinitely delay action on Cabinet recommendations.

Q2. What is the difference between Article 72 and Article 161 of the Constitution?

 Article 72 confers pardoning powers on the President: it covers offences against Union laws, court-martial sentences, and death sentences. Article 161 confers similar powers on the Governor for offences against State laws, but does not extend to court-martial sentences or full pardon in death penalty cases (only the President can pardon under Article 72). Both the President and Governor must act on the aid and advice of their respective Cabinets.

Q3. Can the Governor reject a Cabinet recommendation for remission?

 No. The Full Bench held expressly that the Governor has no authority to reject a Cabinet decision on remission or premature release. Such decisions by the Cabinet are binding on the Governor. If the Cabinet's recommendation is challenged as arbitrary or mala fide, the appropriate remedy is judicial review before constitutional courts, not independent action by the Governor.

Q4. What is the significance of the Maru Ram and Perarivalan cases in this judgment?

Maru Ram v. Union of India (1981) is the foundational Constitution Bench ruling establishing that the President's and Governor's clemency powers under Articles 72 and 161 must be exercised on Cabinet advice, not as personal prerogatives. AG Perarivalan v. State of Tamil Nadu (2022) reaffirmed this in the context of Article 161 and the Tamil Nadu Governor's handling of remission proposals, holding that the Governor cannot sit on the file and cannot refer matters to the President in respect of State law offences.

Q5. Why was the M.P. Special Police Establishment case held inapplicable? M.P. Special Police Establishment v. State of M.P. dealt with the statutory power to grant sanction for prosecution under Section 197 CrPC (now Section 218 BNSS). That judgment allowed limited discretion in a specific statutory context. The Full Bench held that this statutory precedent cannot be applied to the constitutional power under Article 161, which is governed by a completely different constitutional framework requiring Cabinet advice under Article 163. Applying it to Article 161 was the error that made the earlier Division Bench's decision per incuriam.