Governor bound by Cabinet’s advice: Madras High Court

A Full Bench of the Madras High Court (consisting of three judges) held on Thursday, April 2, 2026 that the Governor, whether he wishes to do so or not, is bound by the recommendations of the Council of Ministers in exercising his powers under Article 161 of the Constitution in matters relating to pardon and premature release of convicts.

The Bench, comprising Justices AD Jagadish Chandira, GK Ilanthiraiyan and Sunder Mohan, also held that the Governor cannot, under any circumstances, exercise any discretionary power to take a view different from the view taken by the Cabinet. The Bench was responding to a reference made to it by the Division Bench.

The Division Bench, comprising Justices MS Ramesh (since retired) and V. Lakshminarayanan, had referred the matter to the larger Bench for an authoritative clarification in September 2025, after being faced with two conflicting orders on the matter passed by two other Division Benches of the Supreme Court in 2024.

While replying to the reference, the Full Bench agreed with State Solicitor Hasan Mohamed Jinnah and advocate M. Radhakrishnan that the matter was resolved by the Constitutional Bench of Judges VR Krishna Iyer, YV Chandrachud, PN Bhagwati, Syed Murtaza Fazalali and AD Koshal of the Supreme Court.

Mr. Jinnah also said that the verdict given in the Maru Ramu case in 1980 was followed by the Supreme Court in 2022 and it was decided to release former Prime Minister Rajiv Gandhi assassination case convict AG Perarivalan. He also relied on the Supreme Court’s 1974 decision in Shamsher Singh v. State of Punjab.

The Full Bench, after concurring with his submission, said that the apex court has consistently held that the Governor cannot exercise any discretionary power in exercising his powers under Article 161 of the Constitution and this is even reflected in its recent decision on the power of the Governor to withdraw bills passed by the State legislature.

While one Division Bench of the High Court had correctly followed the law, the other Bench had erroneously relied on the decision of the High Court in the 2003 Parliamentary Special Constabulary case, which concerned the Governor’s statutory function to grant sanction to prosecute Ministers in corruption cases.

The Full Bench also pointed out that the Supreme Court gave its verdict in the AG Perarivalan case only after considering the MP Special Constabulary case.

“Therefore, it is clear that the judgment in Murugan alias Thirumalai Murugan (delivered by one of the Benches of the High Court) is as follows: per incuriam (a decision made without taking into account the proper state of law) to the limited extent that the MP held that the decision in the Special Constabulary permitted the Governor to act at his discretion in exercising his powers under Article 161 of the Constitution,” the Bench led by Justice Chandira concluded: