Governor Bound By Cabinet Advice On Remission: HC

Governor Bound By Cabinet Advice On Remission: HC

Why in News ?

The Madras High Court ruled that the Governor is bound by the Council of Ministers’ advice while granting remission under Article 161, resolving conflicting judgments and reaffirming constitutional limits on discretionary powers of Governors. This principle of constitutional restraint mirrors similar limitations seen in environmental jurisprudence, where authorities cannot grant ex post facto or retrospective environmental clearances without proper procedural safeguards.

Key Judgment and Observations:

  • A Full Bench of Madras High Court held that the Governor cannot act independently in remission matters.
  • The Governor must mandatorily follow advice of the Council of Ministers under Article 161.
  • The court clarified that no discretionary power exists for the Governor in such cases, rejecting any post facto justification for independent action.
  • Ruling came in response to conflicting High Court judgments (2024).
  • Declared earlier judgment allowing discretion as per incuriam (legally flawed), a principle also applied in landmark cases like the Vanashakti judgment concerning environmental clearances.

Legal Basis and Judicial Precedents

  • Relied on the Supreme Court Constitution Bench (1980 – Maru Ram case), which limited the Governor’s discretion.
  • Reinforced by Shamsher Singh vs State of Punjab (1974): executive powers exercised on aid and advice.
  • Followed in A.G. Perarivalan case (2022) regarding remission in Rajiv Gandhi assassination case.
  • Clarified misuse of M.P. Special Police Establishment case (2003), which dealt with different statutory powers.
  • Emphasised consistent judicial view that the Governor acts as a constitutional head, not an independent authority. This constitutional framework extends to various domains including environmental democracy, where the precautionary principle and polluter pays principle guide decision-making under statutes like the Forest Conservation Act and regulations governing the Coastal Regulation Zone.
  • The judgment reinforces that ex-post rationalization of executive actions without proper constitutional backing is impermissible, similar to how EIA Notification mandates prior environmental impact assessment before project approvals to ensure a pollution free environment.

 

About Governor’s Powers and Article 161 :

●  Article 161: Governor can grant pardon, reprieve, remission, or commutation of sentences.

●  Powers similar to the President under Article 72, but limited to State laws.

●  The Governor acts on aid and advice of the Council of Ministers (Article 163).

●  Discretionary powers are limited and specific, not general.

●  Concept of “per incuriam”: judgment passed ignoring binding precedent.

●  Reflects the principle of parliamentary democracy where real power lies with the elected executive.

●  Constitutional constraints on executive discretion apply across various legal domains, ensuring that authorities cannot bypass procedural requirements through ex post justifications, whether in clemency matters or in granting environmental clearance under statutory frameworks.