IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.09.2008
CORAM:
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Writ Petition Nos.11118, 15842 and 15892 of 2008 and
M.P.Nos.1 and 2 of 2008 in W.P.No.11118 of 2008,
M.P.Nos.1 of 2008 in W.P.Nos.15842 and 15892 of 2008
W.P.No.11118 of 2008:-
S.Nalini Petitioner
Vs
1.State of Tamil Nadu rep. by its
Secretary to Government,
Home(Prison0IV) Department,
Fort St. George,
Chennai 600 009.
2.Advisory Board,
Special Prison for Women,
Vellore,
Rep. by Collector of Vellore District.
3.The Additional Director General of Prison,
CMDA Tower-II, Egmore,
Chennai 8.
4.Ministry of Home Affairs,
Government of India,
New Delhi. Respondents
W.P.No.15842 of 2008:-
S.Jeyakumar Petitioner vs 1.Union of India rep. by the Secretary, Ministry of Home Affairs, New Delhi 110 001. 2.The Government of Tamil Nadu, Rep. by its Secretary to Home Department, Fort St. George, Chennai 600 009. 3.The Advisory Board for the prematurely release of life convicts, Rep. by its Chairman, Collector of Vellore District, Vellore. 4.The Superintendent, Vellore Prison, Vellore 2. Respondents W.P.No.15892 of 2008:- Robert Payas @ Kumaralingam Petitioner vs 1.Union of India rep. by the Secretary, Ministry of Home Affairs, New Delhi 110 001. 2.The Government of Tamil Nadu, Rep. by its Secretary to Home Department, Fort St. George, Chennai 600 009. 3.The Advisory Board for the prematurely release of life convicts, Rep. by its Chairman, Collector of Vellore District, Vellore. 4.The Superintendent, Vellore Prison, Vellore 2. Respondents
Prayer in W.P.No.11118/08:- Writ petition filed under Article 226 of the Constitution of India for a writ of Certiorarified Mandamus, calling for the records relating to the proceedings of the Advisory Board dt 28.12.2006 on the file of the second respondent and the subsequent order of the first respondent dated 31.10.2007 in G.O.(D) No.1303, Home (Prison-IV) Department quash the same and direct the respondents to order premature release of the petitioner from the prison forthwith.
Prayer in W.P.No.15842/08:- Writ petition filed under Article 226 of the Constitution of India for a writ of Certiorarified mandamus, calling for records from the 2nd and 3rd respondents relating to the records of proceedings of the Advisory Board dated 28.12.2006 and quash the same and set aside the consequent order of the second respondent dated 25.07.2007 in G.O.(D) No.911 and direct the respondents to consider and release the petitioner prematurely under Rules 339 and 340 of the Tamil Nadu Prison Rules 1983.
Prayer in W.P.No.15892/08:- Writ petition filed under Article 226 of the Constitution of India for a writ of Certiorarified mandamus, calling for records from the 2nd and 3rd respondents relating to the records of proceedings of the Advisory Board dated 28.12.2006 and quash the same and set aside the consequent order of the second respondent dated 24.10.2007 in G.O.(D) No.1258 and quash the same direct the respondents to consider and release the petitioner prematurely under Rules 339 and 340 of the Tamil Nadu Prison Rules 1983.
In W.P.11118/08:-
For Petitioner : Mr.S.Doraisamy
For RR1 to 3 : Mr.G.Masilamani,
Advocate General
Assisted by Mr.V.Arun,
Additional Government Pleader
For R.4 : Mr.M.Ravindran,
Additional Solicitor General
of India,
Assisted by Mr.Ullasavelan,
Senior Standing Counsel
In W.P.Nos.15842 & 15892/08:-
For Petitioner : Mr.N.G.R.Prasad,
For R.1 : Mr.M.Ravindran,
Additional Solicitor General
of India,
Assisted by Mr.Ullasavelan,
Senior Standing Counsel
For RR2 to 4 : Mr.G.Masilamani,
Advocate General
Assisted by Mr.V.Arun,
Additional Government Pleader
COMMON ORDER
The petitioners are convicts in the case of brutal assassination of Shri.Rajiv Gandhi, the Former Prime Minister of India and 15 others on 21.05.1991, at Sriperumbudur in Tamil Nadu. Initially, a case was registered by the Tamil Nadu Police and later, the investigation was transferred to the Central Bureau of Investigation. A special investigation team was constituted to investigate the crime. Ultimately, the said team filed charge sheet against 41 accused for offences under Sections 120(B) r/w 302, 326, 324, 201, 212 & 216 I.P.C; Sections 3,4 and 5 of the Explosive Substances Act; Section 25 of the Arms Act; Section 12 of Passport Act; Section 14 of the Foreigners Act; Section 6(1)(A) of the Wireless Telegraphy Act and Sections 34 and 35 of the Terroist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as “TADA Act”). Out of 41 accused, 12 of whom were already dead having committed suicide; three absconded and only 26 accused faced the trial before the Designated Court under the TADA Act. The Designated Court by judgment dated 21.09.1998 convicted all the 26 accused including the petitioners herein. All of these three petitioners were imposed death sentence.
2.On appeal, the Hon’ble Supreme Court by judgment dated 11.05.1999 has confirmed the sentence of death imposed on Mrs.Nalini and converted the death sentence on the other two petitioners to one of life imprisonment. Mrs.Nalini was arrested on 14.06.1991. Mr.Jayakumar was arrested on 26.06.1991 and Mr.Robert Payas was arrested on 12.06.1991. Mrs.Nalini was lodged in the Special Prison for Women at Vellore as condemned prisoner.
3.Thereafter, Mrs.Nalini made an application for clemency to the Governor of Tamil Nadu and same was rejected by the Governor of Tamil Nadu. Challenging the said order, Mrs.Nalini filed a writ petition in W.P.No.17655 of 1999 before this Court. By order dated 25.11.1999, this Court set aside the order of the Governor and remanded the matter back for fresh consideration. Thereafter, the Council of Ministers, Government of Tamil Nadu, advised the Governor to commute the death sentence of Mrs.Nalini into one of life imprisonment. On accepting the said advice of the Council of Ministers, the Governor of Tamil Nadu commuted the death sentence into one of life imprisonment vide Government Letter No.406 Home Department dated 24.04.2000. And from 25.04.2000 onwards, Mrs.Nalini was converted as a life convict and she has been continuously lodged in the Special Prison for Women at Vellore.
4.According to Mrs.Nalini, since she has completed 14 years of actual imprisonment, as on 17.06.2005 itself, she is eligible for premature release as provided under Sections 433 and 433 (A) of the Code of Criminal Procedure (hereinafter referred to as “the Code”). But she was not so released. In the mean while, the Government issued G.O.873, Home (Prisons.IV) Department dated 14.09.2006 granting premature release of 472 life convicts who had completed 10 years or more of actual imprisonment. But, Mrs.Nalini was not considered for release under the said Government Order as she did not satisfy the conditions enumerated in the Government Order. Challenging the said Government Order, she has filed a writ petition in W.P.No.41020 of 2006 before this Court, which is also disposed of today by a separate order.
5.Subsequently, the first respondent issued G.O.(D) No.1303 Home (Prisons IV) Department dated 31.10.2007, rejecting the request of Mrs.Nalini for premature release on the basis of the recommendations of the respondents 2 and 3. Challenging the proceedings of the Advisory Board dated 28.12.2006 and the subsequent order of the first respondent dated 31.10.2007 in G.O.Ms.No.1303 Home (Prisons IV) Department dated 31.10.2007 Mrs.Nalini has come forward with W.P.No.11118 of 2008. The relevant portion of G.O.Ms.No.1303 Home (Prisons IV) Department dated 31.10.2007 is extracted below:-
“ORDER:
The life convict No.810, Nalini W/o.Sriharan @ Murugan lodged in Special Prison for Women, Vellore was involved in the assassination of former Prime Minister of India, Shri.Rajiv Gandhi and was convicted by the Presiding Judge, Designated Court No.1, Poonamallee as per CBI Crime No.RC9/S/91 of SCB/CBI/SPE and sentenced to Death under Section 120-B r/w 302 I.P.C., in C.C.No.3 of 1992 on 28.01.1998. The conviction and sentence awarded by the Designated Court was confirmed by the Supreme Court of India in Death Reference Case No.1 of 1998 on 11.05.1999. The death sentence awarded to her was commuted to imprisonment for life by the Government in letter No.406, Home Department, dated 24.04.2000.
2.The Additional Director General of Prisons now in his letter read above has forwarded to the Government the Advisory Board proposal relating to the premature release of life convict No.810, Nalini W/o.Sriharan @ Murugan lodged in Special Prison for Women, Vellore who had completed 14 years of actual sentence on 09.06.2005. Her case was considered by the Advisory Board for premature release, on 28.12.2006. The Advisory Board consisting of the District Collector, Vellore, the Principal Sessions Judge, Vellore and the Superintendent, Special Prison for Women, Vellore have not recommended the premature release of the above life convict. In this connection, the Advisory Board has observed, as follows:-
1.The Crime committed was grave where the former Prime Minister of the country was assassinated along with many top Government Officials, Politicians and general public.
2.The crime was committed in a pre-planned manner and individual was an active member.
3.Since she has harboured sentiments of LTTE and now also the problem continues. Especially now that the fight between LTTE and Srilankan Government has high interest. Hence it is not sure that her sentimental attachment to LTTE has reduced and she will not again indulge in unlawful act to support their cause. Hence her case for premature release is not considered.
The Additional Director General of Prisons has also not recommended for the premature release of the above life convict.
4.The Government have carefully examined the proposal of the Additional Director General of Prisons and have decided to reject the premature release of life convict No.810, Nalini W/o.Sriharan @ Murugan lodged in Special Prison for Women, Vellore accepting the recommendation of the Advisory Board. Accordingly, the Government direct that the premature release of the life convict No.810, Nalini W/o.Sriharan @ Murugan confined in Special Prison for Women, Vellore under the Advisory Board Scheme be rejected.”
6.Mr.Jayakumar (A.10), was convicted and sentenced to undergo life imprisonment. He has been lodged in the Central Prison at Vellore. His request for premature release was rejected on the basis of the proceedings of the Advisory Board dated 28.12.2006 by the Government as per G.O(D) No.911 dated 25.07.2007. Challenging the proceedings of the Advisory Board and the said Government Order, Mr.Jayakumar has come forward with W.P.No.15842 of 2008. The relevant portion of G.O(D) No.911 dated 25.07.2007 is extracted below:-
“ORDER:
The life convict No.12844, Jayakumar S/o.Shanmugalingam lodged in Central Prison, Vellore was involved in the assassination of former Prime Minster of India, Shri.Rajiv Gandhi and was convicted by the Presiding Judge, Designated Court No.1, Poonamallee as per CBI Crime No.RC9/S/91 of SCB/CBI/SPE and sentenced to Death under Section 120-B r/w 302 I.P.C., in C.C.NO.3 of 1992 on 28.01.1998. The sentence awarded by the Designated Court was commuted to imprisonment for life by the Supreme Court of India in Death Reference Case No.1 of 1998 on 11.05.1999.
2.The Additional Director General of Prisons now in his letter read above has forwarded to the Government the Advisory Board proposal relating to the premature release of life convict No.12844, Jayakumar S/o.Shanmugalingam premature release of life convict lodged in Central Prison, Vellore who had completed 14 years of actual sentence on 19.06.2006. His case was considered by the Advisory Board for premature release on 28.12.2006. The Advisory Board considering of the District Collector, Vellore, the Principal Sessions Judge, Vellore, the Superintendent of Prisons, Vellore and Regional Probation Officer, Vellore have not recommended the premature release of the above life convict. In this connection the Advisory Board has observed, as follows:-
1.The Crime is grave and preplanned. The former Prime Minister of the Country was assassinated along with many more high officials, politicians and people.
2.The individual is a Srilankan national with no possibility to go back to his native country due to current fighting between LTTE and Srilankan Government. This may also create passion in him again to commit similar crime, if released. Hence his case for premature release not considered.
The Additional Director General of Prisons has also not recommended for the premature release of the above life convict.
4.The Government have carefully examined the proposal of the Additional Director General of Prisons and decided to reject the premature release of life convict No.12844, Jayakumar S/o.Shanmugalingam lodged in Central Prison, Vellore accepting the recommendation of the Advisory Board. Accordingly, they reject the premature release of the convict No.12844, Jayakumar S/o.Shanmugalingam confined in Central Prison, Vellore under the Advisory Board Scheme.”
7.Mr.Robert Payas @ Kumaralingam (A.9) was convicted and sentenced to undergo life imprisonment and he has been lodged in the Central Prison at Vellore. His request for premature release was rejected by the Government on the basis of the proceedings of the Advisory Board dated 28.12.2006 vide of G.O.(D) No.1258 dated 24.10.2007. Challenging the proceedings of the Advisory Board and the said Government Order, the petitioner Mr.Robert Payas @ Kumaralingam has come forward with W.P.No.15892 of 2008. The relevant portion of G.O.(D) No.1258 dated 24.10.2007 is extracted below:-
“ORDER:
The life convict No.13909, Robert Payas @ Kumaralingam S/o.Balasundram lodged in Central Prison, Vellore was involved in the assassination of former Prime Minster of India, Shri.Rajiv Gandhi and was convicted by the Presiding Judge, Designated Court No.1, Poonamallee as per CBI Crime No.RC9/S/91 of SCB/CBI/SPE and sentenced to Death under Section 120-B r/w 302 I.P.C., in C.C.NO.3 of 1992 on 28.01.1998. The sentence awarded by the Designated Court was commuted to imprisonment for life by the Supreme Court of India in Death Reference Case No.1 of 1998 on 11.05.1999.
2.The Additional Director General of Prisons now in his letter read above has forwarded to the Government the Advisory Board proposal relating to the premature release of life convict No.13909, Robert Payas @ Kumaralingam S/o.Balasundram lodged in Central Prison, Vellore who had completed 14 years of actual sentence on 11.06.2005. His case was considered by the Advisory Board for premature release, convened on 28.12.2006. The Advisory Board consisting of the District Collector, Vellore, the Principal Sessions Judge, Vellore, the Superintendent of Prisons, Vellore and Regional Probation Officer, Vellore have not recommended the premature release of the above life convict. In this connection, the Advisory Board has observed, as follows:-
1.The Crime is grave and brutal. The former Prime Minister of the Country was assassinated.
2.The crime was committed in a pre-planned manner by the Foreign Nationals with the aid of even local persons.
3.The individual is a Srilankan with no chance to go back to his own country even by his own admission. Possibility of going to another country is a matter of speculation. Hence in light of the heightened fighting between LTTE and Srilanka Government currently going on and no possibility of the individual to return to his native country, coupled with grave nature of the crime which was preplanned his request for pre-mature release is not considered.
The Additional Director General of Prisons has also not recommended for the premature of the above life convict.
4.The Government have carefully examined the proposal of the Additional Director General of Prisons and have decided to reject the premature release of life convict No.13909, Robert Payas @ Kumaralingam S/o.Balasundram lodged in Central Prison, Vellore accepting the recommendation of the Advisory Board. Accordingly, the premature release of the life convict No.13909, Robert Payas @ Kumaralingam S/o.Balasundram confined in Central Prison, Vellore under the Advisory Board Scheme is rejected.”
8.Since common grounds are raised, all these writ petitions were heard together and they are disposed of by this common order.
9.The crux of the grounds raised by the petitioners in all these writ petitions are follows:-
(i)The constitution of the Advisory Board under Rule 335 of the Tamil Nadu Prison Rules of 1983 (hereinafter referred to as “the Rules”) is defective inasmuch as it does not have 7 members as provided in Rule 335(2) of the said Rule.
(ii)The relevant records were not circulated among all the members of the Advisory Board well in advance before the meeting as required under Rule 333(2) of the Rules.
(iii)The members of the Board were not given any notice of the Board meeting.
(iv)The Board did not consider the relevant materials as enumerated in Rule 339(4) of the Rules.
(v)The Board did not take into consideration the records such as report from the Superintendent of Prison; the Psychological study report of the Psychologist; the report of the medical officer of the Central prison and the report of the Probation Officer as required under Rule 339(5) of the Rules.
(vi)The opinion of the Probation Officer was not duly considered by the Board and no detailed reasons were recorded by the Advisory Board though, the decision was taken against the opinion of the Probation Officer.
(vii)No detailed reasons were recorded by the Advisory Board as required under Rule 339 (6) of the Rules while not recommending for the premature release against the opinion of the Probation Officer.
(viii)The District Collectors have failed to weigh the circumstances of each case of the petitioners in the light of the reports of the Probation Officers and the Superintendent of Prison and have also failed to furnish the grounds in detail for their recommendation to the Superintendent of Prison for consideration by the Advisory Board as required under Rule 339(6) of the Rules. The District Collectors in all these three cases had no occasion to consider the reports of the Probation Officers. The reports of the District Collectors would reveal that irrelevant material such as, the reports of the Tahsildar were considered.
(ix)The Advisory Board did not consider the relevant materials and instead have considered the irrelevant materials and have not acted in accordance with the Rules. Thus, according to the petitioners, the proceedings of the Advisory Board in all the three cases are vitiated and therefore, they are liable to be quashed.
(x)The Government has not considered the report of the Advisory Board properly and the other relevant records. The Government has instead relied on the report of the Additional Director General of Prison which is not permissible under the Rules. Since the Government Orders came to be issued based on the irrelevant materials, apart from the defective reports of the Advisory Board, the same are liable to be quashed as they are violative of Articles 14 and 21 of the Constitution of India.
10.Mr.Duraisamy, the learned counsel appearing for Mrs.Nalini and Mr.N.G.R.Prasad, the learned counsel appearing for Mr.Jayakumar and Mr.Robert Payas @ Kumaralingam, would take me through all the relevant records to substantiate their contentions. They would also place reliance on various judgments of the Hon’ble Supreme Court about which, I would make reference at the appropriate stage of this order.
11.The learned Advocate General appearing for the State of Tamil Nadu would submit the following:-
(i) The convicts have no vested right to demand for premature release either under Article 161 of the Constitution of India or under the provisions of the Code of Criminal Procedure.
(ii)The Advisory Board which considered the case of the petitioners was a legally constituted Board and it cannot be said that the Constitution of the Board did not satisfy the requirements of Rule 335 of the Rules.
(iii)The Rules do not prescribe any coram for the Board meeting and therefore, though in the cases on hand, the Board meetings were not attended to by some of the members of the Board, on that score alone the decision taken by the Board cannot be found fault with or stated to be defective.
(iv)The Board did consider all the relevant materials as required under Rule 339(4) of the Rules; there is no legal requirement for the Board to record all the details and the reasons for the conclusion, as if, it were a judgment of a judicial authority or an order of a quasi judicial authority. The function of the Board is an executive function and so, there is no legal requirement for the Board to write a detailed order. The proceedings of the Advisory Board, in all these writ petitions, on the face of it satisfy the requirements of Rule 339(4) and (5) of the Rules.
(v)The Prison Rules prescribe only procedure which do not confer any right on the convicts for premature release. Even if there are certain lapses or infirmities in the procedure adopted, that will not give rise to any right for the convicts to be released prematurely.
(vi) It is the prerogative of the Government under Article 161 of the Constitution of India and under the provisions of the Code of Criminal procedure to consider the case of premature release and refuse to release so in appropriate cases considering the gravity of the offences and the impact on the society etc. In the cases on hand, the decision of the Government refusing to grant premature release cannot be called either as arbitrary or unreasonable so as to subject the same for judicial review under Article 226 of the Constitution of India.
12.He would rely on a number of judgments of the Hon’ble Supreme Court about which I would make reference at the appropriate stages of this order. The learned Advocate General would pray for dismissal of the writ petitions.
13.The learned Additional Solicitor General appearing for the Union of India has not filed any counter and he would submit that since no action of the Union of India is challenged and since no relief is sought for against the Union of India in these writ petitions, the Central Government has no say in the matter and the Central Government is only a formal party. Thus, the Central Government neither opposes the writ petitions nor concedes.
14.Dr.Subramanya Swamy (Former Law Minister, Union of India) who has been permitted by this Court to intervene in the writ petition filed by Mrs.Nalini, appeared in person and submitted the following, opposing the said writ petition:-
(i)Mrs.Nalini was originally a condemned prisoner facing death sentence as per the judgment of the Hon’ble Supreme Court. The death sentence was later commuted by the Governor of Tamil Nadu in exercise of power under Article 161 of the Constitution of India. Therefore, Section 433(A) of the Code has got no application to her since it deals, inter alia, with the convicts whose death sentence was later commuted into one of life imprisonment under Section 433 of the Code. In this case, since the commutation was not made under Section 433 of the Code, but under Article 161 of the Constitution of India, the remission rule enshrined in Section 433(A) of the Code for consideration is not applicable and the Advisory Board had exceeded in its power by considering the plea of Mrs.Nalini for premature release under Section 433(A) of the Code. Therefore, it is irrelevant as to whether the Advisory Board was properly constituted or not and whether the Board applied its mind or not.
(ii)Since the offences in question was investigated by C.B.I., without the consultation of the Central Government, the State Government has no power to give premature release to Mrs.Nalini. The disinclination of the Union of India to file Counter should give rise to a presumption that there was no consultation between the Central Government and the State Government.
(iii)The exercise of power of pardon under Article 161 cannot be repeated since such power could be exercised only once in the case of a particular convict.
(iv)Chapter 19 of the Rules dealing with remission of sentence is wholly misplaced in the case of Mrs.Nalini. Nothing accrues from the said Rules for remission of sentence for her. There is no right accrued on Mrs.Nalini to demand for premature release on the ground that she has completed 14 years of actual imprisonment. The principles stated in Swamy Shraddananda v. State of Karnatakas case (2008 (2) SCC (Cri) 322), is strictly followed, Mrs.Nalini would not be entitled for premature release.
(v)The commutation of death sentence into one of life imprisonment granted to Mrs.Nalini itself is not in conformity with law and therefore, she cannot demand for premature release.
(vi).The crime committed by Mrs.Nalini should be construed to be a crime against the nation having very serious repercussions and so, the matter should be seriously viewed and Mrs.Nalini should not be allowed to enjoy the benefit of premature release.
15.Mr.Subramanya Swamy also relied on few judgments of the Hon’ble Supreme Court about which also I would make reference at the appropriate stage of this order.
16.Before going into the other issues involved in these writ petitions, let me first examine the legal position regarding the scope of judicial review in respect of refusal of the State Government to grant premature release for the convicts who are facing imprisonment for life.
17.To know the legal position, the journey should start from the case of G.V.Godse v. State of Maharashtra (1961 (1) Crl. L.J 736) which was decided by a Constitution Bench of the Hon’ble Supreme Court wherein, the Constitution Bench set at rest the question whether the life imprisonment should be equated to an imprisonment for 20 years or the convict should spent his entire life in prison. The Constitution Bench in unequivocal terms held that imprisonment for life means prison life for the rest of the life span and not for 20 years. The Court has further held that the convict does not acquire any right to be released prematurely as it is within the exclusive province of the appropriate Government to grant remission. In paragraph No.8 of the said judgment, the Constitution Bench has held as follows:-
“8……..As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable the appropriate Government to remit the sentence under S.401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned. The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under S.401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.”
(Emphasis supplied)
18.The said judgment came to be again considered by another Constitution Bench of the Hon’ble Supreme Court in Maru Ram v. Union of India (1981 SCC Crl.112). The challenge in the said case was to Section 433(A) of the Code which, mandates a life convict to undergo atleast 14 years of actual imprisonment for being considered for remission by the Government. In the said judgment, while comparing the power of the constitutional functionaries viz., the President and the Governor under Articles 72 and 161, respectively vis a vis., the power of Governments both Central and State under Sections 432 and 433(A) of the Code, the Hon’ble Supreme Court in paragraph Nos.59, 60 and 61 has held as follows:-
“59. It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are coextensive. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the constitutional power is untouchable and unapproachable and cannot suffer the vicissitudes of simple legislative processes. Therefore, Section 433-A cannot be invalidated as indirectly violative of Articles 72 and 161. What the Code gives, it can take, and so, an embargo on Sections 432 and 433(a) is within the legislative power of Parliament.
60.Even so, we must remember the constitutional status of Articles 72 and 161 and it is common ground that Section 433-A does not and cannot affect even a wee bit the pardon power of the Governor of the President. The necessary sequel to this logic is that notwithstanding Section 433-A the President and the Governor continue to exercise the power of commutation and release under the aforesaid articles.
61…….The upshot is that the State Government, whether the Governor likes it or not, can advice and act under Article 161, the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the Governors approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release………
……..So, we agree, even without reference to Article 367(1) and Sections 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, 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……..”
19.A close reading of the above judgment would make it manifestly clear that the power of the Governor under Article 161 is entirely different from the power of the Government to grant remission under Sections 432 and 433 of the Code. In so far as Article 161 is concerned, the Governor has to act as per the advice of the Council of Ministers whereas, under the Code, the Government has to decide the issues on its own without reference to the Governor. The question whether the decision taken by the Governor on the advise of the Council of Ministers either granting premature release or refusing the premature release can be subjected to judicial review in a writ proceeding also was considered by the Hon’ble Supreme Court.
20.In paragraph Nos.62 and 63 of the said judgment, the Constitution Bench has held as follows:-
“62……….It is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. We proceed on the basis that these axioms are valid in our constitutional order.
63………It necessarily follows that the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must be informed by the finer canons of constitutionalism.”
21.In conclusion, the Constitution Bench among other things, formulated the following:-
“72. We conclude by formulating our findings:
(1) We repulse all the thrusts on the vires of Section 433-A. Maybe, penologically the prolonged term prescribed by the section is supererogative. If we had our druthers we would have negatived the need for a fourteen-year gestation for reformation. But ours is to construe, not construct, to decode, not to make a code.
(2) We affirm the current supremacy of Section 433-A over the Remission Rules and short-sentencing statutes made by the various States.
(3) We uphold all remissions and short-sentencing passed under Articles 72 and 161 of the Constitution but release will follow, in life sentence cases, only on Government making in order en masse or individually, in that behalf.
(4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar power, and Section 433-A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.
(5) We negate the plea that Section 433-A contravenes Article 20(1) of the Constitution.
(6) We follow Godse case4 to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.
(7)……..
(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.
(9) Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.
(10) Although the remission rules or short-sentencing provisions proprio vigore may not apply as against Section 433-A, they will override Section 433-A if the Government, Central or State, guides itself by the selfsame rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking a desirable step, in our view the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, Section 433-A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.
22.Another Constitution Bench of the Hon’ble Supreme Court had an occasion to go into the question regarding the scope of President’s power under Article 72 in Kehar Singh v. Union of India, (1989 (1) SCC 204). The Court held that the President’s power under Article 72 squarely falls within the judicial domain and can be examined by the Court by way of judicial review but, such power of judicial review cannot be extended to test the merits of the order of the President except with the limitations stated in Maru Ram’s case. The relevant portions of the judgment in Kehar Singhs case are as follows:-
“In the course of argument, the further question raised was whether judicial review extends to an examination of the order passed by the President under Article 72 of the Constitution. At the outset we think it should be clearly understood that we are confined to the question as to the area and scope of the President’s power and not with the question whether it has been truly exercised on the merits. Indeed, we think that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram VS Union of India. The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the Court.
Upon the considerations to which we have adverted, it appears to us clear that the question as to the area of the President’s power under Article 72 falls squarely within the judicial domain and can be examined by the Court by way of judicial review.”
23.In Epuru Sudhakar v. Government of Andhra Pradesh (2006 (8) SCC 161), the Hon’ble Supreme Court has held as follows:-
“The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or vitiated by self-denial on an erroneous appreciation of the full amplitude of the power, is a matter for the Court.
The exercise or non exercise of pardon power by the President or Governor, as the case may be, is not immune from judicial review. Limited judicial review is available in certain cases.
“34.The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:
a) that the order has been passed without application of mind;
b) that the order is mala fide;
c) that the order has been passed an extraneous or wholly irrelevant considerations;
d) that relevant materials have been kept out of consideration;
e) that the order suffers from arbitrariness.
24.Recently in State of Haryana v. Mahender Singh & Others (2007 (8) Supreme 89) the Hon’ble Supreme Court has held as follows:-
“The State indisputably is entitled to take a prison policy as contra-distinguished from a sentencing policy. The Prisons Act, 1894 was enacted to amend the law relating to Prisons. Sub-section (5) of Section 59 thereof empowers the State Government to make rules for the award of marks and shortening of sentences.”
25.A close analysis of all the above judgments would keep things beyond pale of any doubt that the power of the President under Article 72 and the power of the Governor under Article 161 are independent and the same cannot be in any manner affected by the provisions of the Code. The power of the State Government under Section 432 of the Code alone is controlled by Section 433(A) of the Code. The exercise or non exercise of both the powers can be subjected to judicial review but subject to the limitations as stated in Maru Ram’s case and highlighted in Epuru Sudhakars case.
26.In the cases on hand, it is contended by the petitioners that their cases were not properly considered by the Government as required either under Article 161 or under Sections 433 and 433(A) of the Code for remission though they have completed 14 years of actual imprisonment. It is contended by the learned Advocate General that simply because the convicts have completed 14 years of actual imprisonment, they cannot claim it as of right to be released prematurely. He would submit that it is neither a fundamental right nor a statutory right conferred upon them to demand for such premature release. He would further submit that the denial of the Government to consider them for premature release would not either offend Article 21 or 14.
27.Here, I have to state that there is a world of difference between a right to demand for premature release and a right to demand for consideration for premature release. The former is not a vested right whereas the latter is. It has been restated so in Epuru Sudhakars case. In State of Haryana v. Mahender Singh’s case the Hon’ble Supreme Court has very clearly demonstrated the said legal position as follows:-
“25.It is true that no convict has a fundamental right of remission or shortening of sentences. It is also true that the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors. The power of the State to issue general instructions, so that no discrimination is made, is also permissible in law.”
28. In these writ petitions, it is not the case of the petitioners that they have got either constitutional right or statuary right to demand for premature release. What the petitioners plead is that, though as per the executive instructions found in the form of the Tamil Nadu Prison Rules their cases require to be considered by following the regulations found in the Rules themselves, the Government has not considered the same in accordance with law. To substantiate their contentions, they have pointed out several circumstances about which I would discuss later.
29.The question now is whether the government has got unfettered powers not to consider the case of the petitioners for premature release and whether such a denial will be in conformity with Articles 14 and 21 of the Constitution of India. In all the cases cited supra including Maru Ram’s case, it has been consistently held by the Hon’ble Supreme Court that to exercise the power under Article 161, the State is expected to regulate its own procedure so as to avoid un-reasonableness, arbitrariness and discrimination. But in so far as the State of Tamil Nadu is concerned, so far no such regulation has been issued for exercise of the executive function under Article 161. In Maru Ram’s case, the Hon’ble Supreme Court has said:-
“We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking a desirable step, in our view the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, Section 433-A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.”
30.In paragraph No.32 of State of Haryana v. Mahender Singh’s case, it has been held:
“A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the prisons Act but also from the Rules framed thereunder. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy decision itself must be held to have a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally.”
31.Having regard to the above law laid down by the Hon’ble Supreme Court, if the scenario in the State of Tamil Nadu is considered, as I have already stated, the State Government has not so far issued any regulation to regulate its own procedure for exercising its executive function under Article 161 of the Constitution of India and so, as held in Maru Rams case, until such regulations are issued by the Government of Tamil Nadu, the Tamil Nadu Prison Rules issued under the Prisons Act should be followed. The learned Advocate General would submit that though there is no fixed guidelines regulating the executive function under Article 161, on occasions like the birth centenary of Mahatma Gandhiji and the birth centenary of Perarinjar Anna, the Government has framed certain regulations by issuing Government Orders regulating the executive function under Article 161 to grant remission to the convicts including life convicts. These Government Orders would go to show that the State Government did not consider the individual cases but instead it created certain classifications and also imposed certain conditions for premature release of certain classes of convicts. But in the instant writ petitions, it is not the grievance of the petitioners that either such classifications made or the conditions imposed in those Government Orders are detrimental to their right to be considered to come out on premature release. The grievance of the petitioners precisely is that though the Tamil Nadu Prison Rules issued under the Prisons Act, is a statutory rule regulating the remission of sentence of the life convicts for premature release, the said rules have not been strictly followed.
32.As held by the Hon’ble Supreme Court, though no convict can claim to have any constitutional right for getting remission, in view of the policy decision of the Government, they have got legal right to be considered for remission which cannot be doubted at all. The said legal right emanates not only from the Code of Criminal Procedure but also from the Tamil Nadu Prison Rules framed under the Prisons Act.
33.In the instant cases, in conformity to the said legal right of the petitioners, the Government considered their case for premature release, but refused to pardon. Thus, it is not the case of the Government itself that the petitioners are not entitled to be considered as provided in the Code of Criminal Procedure and the Tamil Nadu Prison Rules.
34.Now, let me glance through the relevant provisions of the Tamil Nadu Prison Rules. Chapter 18 of the Tamil Nadu Prison Rules deals with the remission system. Rules 335, 337, 339, 340 & 341 are relevant for our discussions.
“Rule 335:-The Advisory Board and its constitution.- There shall be an Advisory Board for each Central Prison and State Prison for women, Vellore
(1)The Advisory Board for the City of Madras shall consist of
(i)The Inspector-General (Chairman);
(ii)The Chief Metropolitan Magistrate, Madras;
(iii)The Commissioner of Police, Madras;
(iv)The Chief Probation Superintendent, Madras;
(v)One or more non-official members appointed by the Government;
(vi)The Superintendent, Central Prison, Madras (Secretary)
(2)In the mofussil, the Advisory Board shall consist of-
(i)The Inspector General (Chairman);
(ii)The Sessions Judge of the Sessions Division in which the prison is situated;
(iii)The District Collector;
(iv)The Chief Judicial Magistrate;
(v)The Regional Probation Officer of the station;
(vi)One or more non-official members appointed by Government
(vii)The Superintendent of the Central Prison concerned (Secretary);
(3)The Advisory Board for premature release of the adolescent prisoners detained in the dormitory block of the Borstal School, Pudukottai shall consist of
(i)District Collector, Pudukottai (in the absence of the Inspector General of Prisons)- Chairman.
(ii)Superintendent, Borstal School, Pudukkottai Secretary.
(iii)Regional Probation Officer, Pudukottai Joint Secretary.
(iv)Sessions Judge, Pudukkottai Official Member
(v)Chief Judicial Magistrate, Pudukkottai Official Member
(vi)One member appointed by the Government-Non-official Members
The Board shall consider the premature release of the adolescent prisoners detained in the dormitory block of the Borstal School.
Rule 337.Presiding officer in the absence of the Chairman.- The Chief Metropolitan Magistrate in the City of Madras, the Collectors in other district shall, in the absence of the Inspector General preside over the meeting of the Advisory Board, to consider the premature release of prisoners held in their respective jurisdictions. In the absence of both the Inspector General and the Collectors, the Sessions Judge shall preside over the meetings of the Advisory Board held in the mofussil.
Rule 339.Procedure to be adopted by the Advisory Board.-(1)The members of the Advisory Board shall always treat the information about prisoners as confidential.
(2)A brief summary of the cases coming for consideration by the Advisory Board with the connected records shall be circulated among all members of Advisory Board well in advance of the meeting.
(3)The Advisory Board shall examine if the cases placed before it satisfy the rules and if there has been any undue delay in placing such cases before the Board.
(4)The Board, while considering the due cases for premature releases shall take note of the social history of the prisoner, the circumstances of his criminal behavior, conduct in prison, response to training and treatment, notable changes in his attitude, degree of criminality, health and mental condition and the possibility of his resettlement on his premature release and also the circumstances as were not before the Court at the time of his conviction.
(5)The Advisory Board shall also take into consideration of the following records; namely-
(a)Report from the Superintendent of the prisons and also the psychological study report of the Psychologist, if any;
(b)Report of the Medical Officer of the Central Prison, wherever necessary;
(c)Report of the Probation Officer;
(6)In the event of the Advisory Board recommending or not recommending the premature release against the opinion of the Probation Officer and the District Collector, detailed reasons in justification of such recommendation shall be recorded in the Advisory Boards proceedings.
(7)Minutes of the Advisory Board Meeting shall be recorded and signed by the Chairman and all members present.
Rule 340:-Calling for verification report.- In preparing cases for consideration of release on parole of prisoners by the Advisory Board, the Superintendent of the Prison shall address the Collector and the Probation Officer concerned for reports on the advisability of the premature release of the prisoner in question. The Probation Officer shall personally enquire into each case and send his report to the Collector with a copy to the Superintendent in Form No.98. If the Probation Officer feels that the release of a prisoner is likely to involve breach of peace in the locality, the Probation Officer shall consult the local Sub-Inspector of Police, solely with a view to avoid any breach of peace in the back-ground of factions and party strife and record the views of the Sub-Inspector of Police against item 2 of Form No.100. In respect of other cases in which there is no likelihood of breach of peace, the Probation Officer shall send his report direct to the Collector and the Superintendent without consulting the local Sub-Inspector of Police. The Collector of the District concerned shall carefully weigh the circumstances of each individual case in the light of the views of the Probation Officer and the Police Officer and shall invariably furnish the grounds in detail for his recommendation to the Superintendent of the Prison for consideration by the Advisory Board.
(2)If on any account, the Advisory Board wants a fresh report, the Probation Officer shall conduct necessary enquiry afresh and send his report to the Collector in consultation with the local Sub-Inspector of Police, if necessary, with a copy to the Superintendent. The Collector may either transmit the report of the Probation Officer with his recommendation or if he so feels, conduct enquiries by the officers of the department independent of the report of the Probation Officer and forward his recommendations to the Superintendent along with the report of the Probation Officer.
Rule 341:- Cases of prisoners to be placed before the Advisory Board.- (1) The sentences of all prisoners sentenced to imprisonment for life or to more than twenty years imprisonment in the aggregate or imprisonment for life and imprisonment for terms exceeding in the aggregate twenty years shall, for the purpose of his rule, be deemed to be sentences of imprisonment for twenty years.
(2)The cases of prisoners undergoing imprisonment for life shall ordinarily be placed before the Advisory Board as constituted for consideration as to whether their parole will be recommended, on completion of ten years of actual imprisonment.
Provided that …….
Explanations ……..
(3)The cases of prisoners sentenced to more than three years, excepting lifers to whom subrule (2) applies, shall be placed before the Advisory Board if they have served two thirds of their sentence including remission.
Provided that ………..
Explanations …………
4(i)The cases of prisoners coming under sub-rule (2) shall be submitted to Government for orders with the recommendation of the Advisory Board whether it recommends for parole or not, together with the judgment of the Court and other connected papers.
(ii)The cases of prisoners sentenced to seven years and above and whose cases whether or not recommended for parole by the Advisory Board, shall also be sent to the Government for orders.
(iii)The cases of prisoners sentenced to less than seven years shall be sent to Government only if recommended for parole by the Advisory Board.
(iv)If the Government refuse to order parole of a prisoner referred to in the first paragraph of sub-rule (3), they shall direct the resubmission of his case for their re-consideration again after such period as they may deem fit;
Provided that ………..”
35.Admittedly, to regulate the exercise of executive function under Article 161 as well as under the Code, except the provisions contained in the Tamil Nadu Prison Rules, there is no other regulation or rule in force in this State. Therefore, it has to be tested now whether the authorities under the said Rules have exercised their power in tune with the procedure and as per parameters enumerated in the Prison Rules.
36.The first attack made by Mr.Duraisamy, the learned counsel appearing for Mrs.Nalini is that the Advisory Board which heard the case of Mrs.Nalini was not validly constituted inasmuch as it did not contain 7 Members as provided in Rule 335. The said argument equally applies to the case of the other petitioners also.
37.The learned Advocate General would fairly concede that there was no non official member appointed by the Government as provided in Rule 335(2). But, the other members are only ex-officio members and so, there is no question of making any order appointing them as members. By virtue of their very office, as per the Rules, they become members of the Advisory Board. The contention of the learned Advocate General is that though it is true that the Board did not contain 7 members as required under Rule 335(2), nevertheless, the proceedings of the Board would not be vitiated as there is no coram prescribed in the Rule. The said contention of the learned Advocate General deserves to be accepted. On the ground that there was no non official member in the Board and also on the ground that some of the members did not attend the meeting, the entire proceedings of the Board cannot be held to be vitiated.
38.The Superintendent, Special Prison for Women, Vellore and the Superintendent, Central Prison, Vellore have filed separate affidavits. In the affidavit of the Superintendent, Special Prison for Women, Vellore, it has been stated that for the meeting of the Advisory Board, notice was sent to one Mrs.Ranimani and another Mrs.Indira who are the prison visitors. Similarly, in the affidavit filed by the Superintendent, Central Prison, Vellore he has stated that one Mr.Nagu @ Nagaraj, the prison visitor was informed and Psychologist Mr.Kandasamy was also informed about the meeting. In the same affidavit, it is stated that the meeting was chaired by the District Collector and not by the Inspector General of Prisons because, as per G.O.Ms.No.1064, Home (pr.IV) Department, dated 24.04.1986, wherein the Government has issued guidelines for premature release of life convicts. As per the same, in respect of Moufsil Jails, the following six members are the members of the Board.
(i)The District Collector (Chairman)
(ii)The Sessions Judge of the Sessions Division in which the prison is situated;
(iii)The Chief Judicial Magistrate of the District in which the prison is situated;
(iv)The Superintendent of the concerned Central Prison;
(v)The Regional Probation Officer of station and
(vi)One or more non-official member if any appointed by the Government.
39.Along with the affidavit, G.O.Ms.No.1064, Home (pr.IV) Department, dated 24.04.1986 has also been produced. The said Government Order has been issued by the Government prescribing certain guidelines for consideration of premature release of life convicts under the Advisory Board Scheme. Clause 5 of the said G.O., says that necessary amendments to Rule 341(2) of Prison Manual Volume-II may be sent to Government. Thus, the statutory rule under the Prisons Act was not amended by the Government. G.O.Ms.No.2596 Home (Prisons V) Department, dated 16.09.1986 has been produced for perusal. The said G.O., has been issued amending the Rule 341(2) and 341(3) of the Prison Rules. Thus, it is very clear that Rules 335, 336 and 337 have not been amended so far. As stated above, as per the statutory Rules namely, the Tamil Nadu Prison Rules, there shall be 7 members and the Chairman of the Board is the Inspector General of Prisons. Therefore, the meeting should be chaired only by the Inspector General of Prisons and in his absence, it can be chaired by the District Collector. It is well settled that administrative guidelines or instructions given by the Government shall not override the statutory rules issued under a statutory provision. Therefore, reliance made by the respondents on the said G.Os., is not correct.
40.Rule 337, as extracted above, would show that the meeting of the Advisory Board shall be presided over by the Chairman who is the Inspector General of Prisons. Only in the absence of the Inspector General of Prisons, the District Collector shall preside over the meeting. In the cases on hand, the meetings were presided over by the District Collector. There is no piece of paper to show that the Inspector General of Prisons was ever informed about the meetings. It is not as if the Inspector General of Prisons was not present and so, the District Collector was impelled to preside over the meetings. The explanation that the Inspector General of Prisons is no more the Chairman of the Board cannot be accepted for the reasons stated in the earlier paragraph. When the Chairman of the Advisory Board himself was not informed, it is hard to agree with the contention of the learned Advocate General that the meetings were validly convened. As stated above, not only the Inspector General of Prisons there are no proceedings found in the necessary files to show that the Chief Judicial Magistrate who is a responsible judicial Officer was ever informed of these meetings. Therefore, I have to hold that the meetings were not validly convened.
41.Under Rule 341, before placing the cases for consideration for premature release before the Advisory Board, the Superintendent of Prison should address the District Collector and the Probation Officer concerned for reports on the advisability of the premature release of the prisoner in question. The Probation Officer should hold necessary enquiry and submit his report in Form 98 appended to the Rules. The Probation Officer is also required to consult the local Sub Inspector of Police. The District Collector before forming his opinion, should consider the views of the Probation Officer and the local Sub Inspector of Police and thereafter, he has to make his recommendation to the Superintendent of Prison for consideration of the Advisory Board. This provision has also not been followed in the cases of the petitioners.
42.Ofcourse it is true that in these cases, reports had been obtained from the District Collectors. But, the reports of the Probation Officers were admittedly not sent to the District Collectors for their consideration along with the report of the local Sub Inspectors of Police. Curiously, in the case of Mr.Jayakumr, the District Collector, Chennai has stated that he collected materials through a Tahsildar to make the recommendation. The learned Advocate General would submit that there is nothing illegal or irregular on the part of the District Collector to call for such reports from his subordinates to make the recommendation. It is not to say that the District Collector should not adopt the said practice at all. Since releasing the petitioners prematurely involves so many social consequences and public interest, the District Collector may very well collect materials in respect of the prisoners through his own subordinates. But at the same time, he is obliged to follow the statutory procedure contained in the Rules inasmuch as he should consider the report of the Probation Officer and the report of the local Sub Inspector of Police before making the recommendation. Admittedly, the said procedure also was not followed in these three cases.
43.As per Rule 339(2), before the actual date of meeting, it is required that a brief summary of the cases coming for consideration along with the connected records shall be circulated among all the members of the Advisory Board well in advance before the meeting. The learned Advocate General would fairly concede that in these cases, no such circulation of papers was made to any of the members of the Board except the District Collector. It is also seen from the records that no notice was sent to any of the members including the Chief Judicial Magistrate. It is not the case that after notice and after circulation of papers along with the summary of the cases, some of the members did not participate in the meeting. If it is the case of the Government that despite service of notice and supply of papers, some members did not participate, the meeting need not be adjourned and the proceedings of the meeting will stand validated as there is no coram prescribed. But that is not the case here. Admittedly, no notice was issued to all the members of the Advisory Board regarding the proposed meeting and the records and the summary of the cases were not at all circulated. To put it otherwise, the members of the Board were kept in dark about the convening of the meeting as well as the subject of the meeting. Therefore, the contention of the learned Advocate General that though only few members such as the District Collector, the District Judge and the Superintendent of Prison participated in the meeting, on that score alone the proceedings of the Board shall not stand vitiated cannot be countenanced at all. I hold that in all these three cases, the meeting of the Advisory Board was not convened in accordance with Rule 339, after circulating the records to the members of the Advisory Board.
44.Yet another fact which needs to be mentioned here is that apart from the members of the Board, some others had also been allowed to participate in the meeting. It is pointed out that they are visitors to the jail. I do not understand as to how the authorities could allow the visitors to the jail to participate in the Board meeting and in the decision making process. In the affidavits filed by the Superintendent of Prisons, it has been stated that as per G.O.Ms.No.1064 dated 24.04.1986, the visitors to the Jail were allowed to participate in the Board meeting. As I have already held the said G.O., was only a proposal for amendment of the Tamil Nadu Prison Rules and the Prison Rules were not in fact amended. As per G.O.Ms.No.2596 dated 16.09.1986, Rule 341(2) alone was amended. So, all these procedures adopted in these cases do not have the sanction of law.
45.Under Rule 339 (5), the Advisory Board shall take into consideration the report of the Superintendent of Prisons, the psychological report of the psychologist, the report of the local Sub Inspector of Police and the report of the Probation Officer. In this case, the report of the Medical Officer and the report of the Psychologist have not been obtained and placed before the Board at all. A perusal of the proceedings of the Board would go to show that except the reports of the Probation Officer and that of the District Collectors, no other material was placed for consideration of the Board as required under Rule 339 (4) and (5).
46.Yet another serious lapse in the proceedings of the Board is in respect of Rule 339(6) which mandates that for any reason if the Board takes a view contrary to the recommendation either of the District Collector or of the Probation Officer, then detailed reasons justifying the action of the Board are to be recorded. In these cases, the Probation Officers recommended for the premature release of these petitioners. Though it is true that the respective District Collectors did not make any such recommendation as I have held above, the reports of the District Collectors cannot be construed to be comprehensive reports fulfilling all the requirements as they were not prepared after considering the report of the probation officer and that of the local Sub Inspector of Police. Here, a perusal of the records would show that there are no justifying reasons recorded by the Board for not recommending for premature release of the petitioners overlooking the recommendations made by the Probation Officers. This, in my considered opinion, is a very serious flaw which would only reflect total non application of mind on the part of the Board in respect of the facts as well as law.
47.Then comes Rule 339(4) of the Rules. Under the said Rule, there are as many as 8 circumstances which are to be considered by the Board such as, social history of the prisoner, the circumstances of his criminal behavior, conduct in person, response to training and treatment, notable changes in his attitude, degree of criminality, health and mental condition and the possibility of his resettlement on his premature release and also the circumstances as were not before the Court at the time of his conviction. In all these cases, there is no indication at all in the proceedings of the Board that these factors were taken into account by the Board.
48.The learned Advocate General would submit that though there is no strict compliance of these rules, there has been substantial compliance of the rules which would meet the legal requirements. In my considered opinion, since what is being considered by the Board is the most vital fundamental right namely the right to life, the procedure contemplated in the prison rules should be strictly adhered to. The contention of the learned Advocate General that there had been substantial compliance of these rules also cannot be countenanced as factually there had been no such substantial compliance.
49.To sum up:-
(i)The Advisory Board meetings were not validly convened;
(ii)The members including the Chairman were not informed of the meeting;
(iii)The District Collector, without the authority of law, had presided over the meeting though the Chairman was available;
(iv)The summary of the cases and connected records were not circulated to the members in advance;
(v)The Probation Officer’s reports along with the reports of the local Sub Inspectors of Police were not placed before the District Collector;
(vi)The parameters enumerated in Rule 339(4) were not taken note of at all by the Board;
(vii)The records such as report of Medical Officer, Psychological study report etc., enumerated in Rule 339(5) were not considered by the Board and
(viii)The reasons justifying the decision of the Board against the recommendations of the Probation Officers have not been recorded.
50.For all these reasons, I have to necessarily hold that there is not even substantial compliance of the Rules by the Board. From the records available, what I could gather is that the entire exercise has been treated only as an empty formality and no serious concern was ever shown by the authorities to validly conduct the meeting and to seriously consider the issues in accordance with law.
51.The learned Advocate General would submit that the Rules contained in the Tamil Nadu Prison Rules are only procedural rules and not substantive. He would further submit that though there are here and there certain lapses either in the convening of the meeting or in the proceedings of the meeting, nevertheless, these lapses would not vitiate the proceedings. But I am not able to persuade myself to agree with the said contention. The Hon’ble Supreme Court has been consistently holding that in matters of remission, when there is a Rule, the same is to be strictly followed so as to avoid any unreasonableness, arbitrariness or discrimination
52.In these cases, it is the contention of the petitioners that the entire proceeding is vitiated on the ground of arbitrariness and discrimination. It is very difficult to reject the said contention. As I have discussed above, there was no serious consideration given to the legal positions as well as the factual positions involved in these cases by the Board. Therefore, though these provisions only regulate the procedure, in my considered opinion, failure to follow the said procedure would amount to denial of justice which would offend both Articles 14 and 21. Therefore, I reject the contention of the learned Advocate General in this regard.
53.The learned Advocate General would submit that this Court should not adopt a procedure to look into the issues with microscopic minuteness. It is ofcourse true that no procedure can be cent percent correctly followed and some minor lapses are bound to occur. But, when the lapses pointed out by the petitioners cut at the root of the issues causing serious prejudice to the petitioners, we cannot brush aside the valuable rights of the petitioners by having a birds eye view of the matter. The lapses which I have pointed out above do not require microscopic focus to perceive them as they are very obvious even for naked eyes.
54.The learned Advocate General would place reliance on the judgment of the Punjab and Haryana High Court in Harbans Singh v. State of Punjab (1987 Cri.L.J 1088) wherein in paragraph No.9, it has been held as follows:-
“9.The view expressed in the aforesaid Madras case appears to us to cut at the very basis of the prerogative right of the executive Government in the exercise of its executive Government in the exercise of its executive functions. The nature of power of the appropriate Government under Section 401, Code of Criminal Procedure, even if meant to be exercised in a reasonable manner (as said so in Gopal Vinayak Godses case (1961 (1) Cri LJ 736) (SC) (supra) does not mean that it has a quasi-judicial element in it and the administrative tint in it justifies the invocation of principles of natural justice and audi alteram partem. The power of the appropriate Government is and remains executive in nature and in our considered view the principles of natural justice and audi alteram partem cannot be grafted thereon by means of judicial innovations and activism. Thus, we hold it accordingly and declare it so.”
(Emphasis Supplied)
55.Regarding the said legal proposition, there cannot be any dispute. It is not the case of the petitioners at all that the function of the Government both under Article 161 and under the Code is of quasi judicial in character. Admittedly, it is now well settled beyond any pale of doubt that the function of the Government under these provisions, pure and simple is an executive function. The learned Advocate General would submit that the question of following the principles of natural justice and audi alteram partem cannot be engrafted thereon by means of judicial innovations and activism. It is true that the decision of the Government is not a quasi judicial function and therefore, there need not be an elaborate discussion of various facts. Though, it is contended by the learned counsel for the petitioners that there is no discussion in the proceedings about the parameters which are enumerated in Rule 339(4), law does not expect such a detailed discussion on every parameter. But at the same time, it is the settled law that even in respect of the administrative orders, or executive orders, the authorities enjoined with the power should pass speaking orders. The Hon’ble Supreme Court has well settled the proposition that a non speaking order is no order in the eye of law. Therefore, though it is not the law that there has to be a vivid discussion about each parameter contained in Rule 339(4), I would say that atleast there are to be certain indications in the proceedings of the Board to reflect that the Board did consider all the parameters enumerated therein. But in all these cases, a perusal of the records would go to show that there is no such indication at all found. This shows that there is total non application of mind on the part of the Board as well as the Government. Whether it is a quasi judicial order or an executive order, nevertheless, it should be free from arbitrariness. If it is the case of any public authority that while discharging his executive function, he is not required to record his reasons then it will certainly lead to arbitrariness. May be it is true that keeping in mind some good intentions, the public authorities would have passed a particular order. But unless it is reflected on papers, one cannot gauge the intention which influenced the mind of the public authorities. That is why law always expects the public authorities to record their reasons for conclusions by passing speaking orders. In this case as I have already stated, the Board proceedings do not indicate anything to show that the Board considered the relevant parameters except a few.
56.The learned Advocate General then has placed a judgment of the Hon’ble Supreme Court in Delhi Admin. v. Manohar Lal (2002 SCC (Cri) 1670) wherein, in paragraph No.7 it has been held as follows:-
“7.As observed earlier, the powers conferred upon the appropriate Government under Section 433 CrPC, have to be exercised in accordance with rules and established principles reasonably and rationally, keeping in view the reasons germane and relevant for the purpose of law under which the conviction and sentence has been imposed, commiserative facts necessitating the commutation, and the interests of the society and public interest. The exercise of any power vested by the statute in a public authority is to be always viewed as in trust, coupled with a duty to exercise the same in the larger public and societal interest, too. When the legislature concerned has chosen to mandate for the imposition of a minimum sentence in a given situation, the responsibility of the appropriate Government becomes all the more greater and power under Section 433 CrPC, may have to be exercised with great circumspection. Otherwise, the legislative will might become a mere dead letter at the whim of the executive.”
57.The said judgment clearly supports the case of the petitioners. As held by the Hon’ble Supreme Court, the procedure for consideration for the purpose of invoking the power under Article 161 or the provisions contained in Code should be followed in accordance with the rules and established principles. Admittedly, in the State of Tamil Nadu, the Prison Rules is the only rules which is being followed for premature release either under Article 161 or under the Code. Since in this case, the consideration was not made in accordance with the rules and established principles, I am not able to fall in line with the argument of the learned Advocate General.
58.The learned Advocate General placed reliance on the judgment of the Hon’ble Supreme Court in State v. Prem Raj (2003 SCC (Cri) 1586) wherein in paragraph No.12 it has been held as follows:-
“12.Pardon is one of the many prerogatives which have been recognized since time immemorial as being vested in the Sovereign, wherever the sovereignty might lie. This sovereign power to grant a pardon has been recognized in our Constitution in Articles 72 and 161, and also in Sections 432 and 433 of the Code. Grant of pardon to an accomplice under certain conditions as contemplated by Section 306 of the Code is a variation of this very power. The grant of pardon, whether it is under Article 161 or 72 of the Constitution or under Sections 306, 432 and 433 is the exercise of sovereign power.
59.Regarding the said legal preposition also one cannot have a different opinion. It is true that it is the sovereign power of the Governor under Article 161 and the Government under Sections 432 and 433 of the Code to grant pardon to the convicts. This Court cannot direct the Governor to release the petitioners herein prematurely either by exercising the power under Article 161 or under Sections 433 and 433-A of the Code as it would amount to invading into the powers of the other constitutional functionaries. The separation of powers is well defined in the constitution. This Court knows its own bounds and it would always keep restraint from interfering into the sovereign power of the other wings of the Government. But when the other functionaries like the Governor or the Government fail to exercise the sovereign power in the expected legal lines then the occasion for the Court arises to interfere to correct the same. In the cases on hand, as I have concluded in the previous paragraphs, the authorities have failed to consider the cases as per the procedure established under law. Therefore, this Court has to necessarily interfere, otherwise it would result in failure of justice to the parties.
60.Mr.N.G.R.Prasad, the learned counsel appearing for Mr.Jayakumar and Robert Payas @ Kumaralingam would rely on the following portions of the judgment of the Hon’ble Supreme Court in Epuru Sudhakar’s case.
“55. According to learned counsel for the State this was sufficient as the Collector had to act on some material and he acted on the reports of the Superintendent of Police and the Revenue Divisional Officer. The plea is clearly unacceptable. The Collector does not appear to have made any independent enquiry on his own. The report of the District Probation Officer is very interesting. In his report he has stated that if he (Respondent 2) is prematurely released his life would be safe because his wife is a sitting MLA and she is having a police security. Further he was having a stronghold in the village and there is no opposition in Bramhanakotkur Village. Following portion of his report shows as to how extraneous materials which had no relevance formed the foundation of his report:
The convict Gouru Venkata Reddy, s/o Janardhan Reddy, Central Prison Cherlapally belongs to upper caste Reddys family of Bramhanakotkur (village), Nandikotkur Mandal and Taluk. The father of the convict was Janardhan Reddy and mother was Gouru Lakshmi Devi and during enquiry it is revealed that both were dead. The grandmother of the convict Smt Ratnamma is old, aged and there is no male person in the house to look after her. She desires that the convict should come and provide medical treatment to her.
In the past the convict contested in the elections and was defeated with small margin. During enquiry it is revealed that the convict is a Congress worker and due to political conspiracy he was defeated. In the elections conducted later on the wife of convict Smt Saritha Reddy contested and was elected. During enquiry it is revealed that the matters mentioned in the application of the wife of the convict are true. The convict has two sisters. The deceased K. Rama Subbaiah and Ambi Reddy belong to Nandikotkur Village. In this murder case the convict is not involved but due to political reasons his name was implicated in the case by producing false witnesses and sent to the jail. But later they realised their mistake and the family members of the deceased are maintaining cordial relations. During enquiry it is revealed that there is no danger to the life of the convict from the villagers and also there is no danger to the villagers from the convict if the convict is released as stated by the President of the village, Shri Shaik Ziauddin, Village Secretary, Shri Sanjanna, village elders, Shri Nagaswamy Reddy, Shri K. Venkata Rami Reddy, Shri Khajamoinuddin and Shri Pathan Moutali, etc.
As seen from the past history of the convict he is not a naxalite, dacoit, and habitual offender. He was peacefully carrying out agricultural activities and a good Congress worker. He used to provide employment to a number of persons through agriculture. It is also revealed that the villagers are having good opinion of the convict.
61.The learned counsel would take me through paragraph Nos. 56 to 59 also which run thus:-
“56. Apart from apparently wrong statement made that Respondent 2 was maintaining cordial relationship with the family members of the deceased, he has highlighted that he was a good Congress worker. Further there is an inference that he was not involved in the murder, was falsely implicated and false witnesses were produced. This inference in the face of this Courts judgment is utterly fallacious. The question of his being a good Congress worker has no relevance to the objects sought to be achieved i.e. consideration of the question whether pardon/remission was to be granted. Equally surprising is the statement to the effect that during enquiry it was revealed that the convict is a Congress worker and by political conspiracy he was defeated in the elections conducted earlier.
57. The report of the Superintendent of Police is equally interesting. He has stated that there will be no reaction in Bramhanakotkur Village and Nandikotkur Town if the prisoner releases on prematurely. The report is dated 6-12-2004. Before the elections, the same officer had reported that on account of Respondent 2s release on parole, there was likelihood of breach of peace and law and order if he visits Nandikotkur assembly constituency. The only reason why a pariah becomes a messiah appears to be the change in the ruling pattern. With such a pliable bureaucracy, there is need for deeper scrutiny when power of pardon/remission is exercised.
58. It appears that in the petition filed by Respondent 3 there is no mention about pendency of Criminal Case No. 411 of 2000. Learned counsel for Respondent 1 State submitted that though this fact was not mentioned by Respondent 3 in the petition yet the State Government considered the effect of the pendency of that petition. This certainly is a serious matter because a person who seeks exercise of highly discretionary power of a high constitutional authority, has to show bona fides and must place materials with clean hands.
59. When the principles of law as noted above are considered in the factual background it is clear that the irrelevant and extraneous materials entered into the decision-making process, thereby vitiating it.
62.Mr.N.G.R.Prasad, the learned counsel, would then rely on a judgment reported in Laxman Naskar etc v. Union of India & Ors (2000(1) Crimes 215 (SC)) wherein in paragraph Nos.7 and 8, the Hon’ble Supreme Court has held as follows:-
“7…….The Government did not pay sufficient attention to the conduct-record of the petitioners while in jail nor did it consider whether they had lost their potentiality in committing crime. The relevant aspect, namely, that there is no fruitful purpose in confining them any more was also not considered nor the socio economic conditions of the convicts family were taken into account. Thus the orders of the Government suffer from infirmities and are liable to be quashed.
8.In the result, we set aside all the orders of the State Government and direct the authorities to re-consider the cases for premature release of all “life convicts” who have approached us by filing present writ petitions as per relevant rules/guidelines within a period of one month from the receipt of this order.”
(Emphasis Supplied)
63.He would further place reliance on a judgment of the Hon’ble Supreme Court in Zahid Hussein & Ors v. State of West Bengal & Anr. (2001(2) Crimes 42(SC) wherein in paragraph No.16 it has been held as follows:-
“16.We are, therefore, of the view that the reasons given by the Review Board for rejecting the prayers for premature release of the petitioners are irrelevant and devoid of any substance. Accordingly, we quash the impugned orders of the government and remit the matter again for deciding it afresh within the period of 3 months from today.”
64.Lastly, he would rely on a judgment of the Hon’ble Supreme Court in Life Convict Laxman Naskar v. State of West Bengal & Anr. (2000 (3) Crimes 217 (SC)) paragraphs 6 and 7.
“6. In the present case, the report of the jail authorities is in favour of the petitioner. However, the Review Committee constituted by the Government recommended to reject the claim of premature release of the petitioner for the following reasons:
(1) That the police report has revealed that the two witnesses who had deposed before the trial court and the people of the locality are all apprehensive of acute breach of peace in the locality in case of premature release of the petitioner;
(2) that the petitioner is a person of about 43 years and hence he has the potential of committing crime; and
(3) that the incident in relation to which the crime had occurred was the sequel of the political feud affecting the society at large.
If we look at the reasons given by the Government, we are afraid that the same are palpably irrelevant or devoid of substance. Firstly, the views of the witnesses who had been examined in the case or the persons in the locality cannot determine whether the petitioner would be a danger if prematurely released because the persons in the locality and the witnesses may still live in the past and their memories are being relied upon without reference to the present and the report of the jail authorities to the effect that the petitioner has reformed himself to a large extent. Secondly, by reason of ones age one cannot say whether the convict has still potentiality of committing the crime or not, but it depends on his attitude to matters, which is not being taken note of by the Government. Lastly, the suggestion that the incident is not an individual act of crime but a sequel of the political feud affecting society at large, whether his political views have been changed or still carries the same so as to commit crime has not been examined by the Government.
7.On the basis of the grounds stated above the Government could not have rejected the claim made by the petitioner. In the circumstances, we quash the order made by the Government and remit the matter to it again to examine the case of the petitioner in the light of what has been stated by this Court earlier and our comments made in this order as to the grounds upon which the Government refused to act on the report of the jail authorities and also to take note of the change in the law by enacting the West Bengal Correctional Services Act XXXII of 1992 and to decide the matter afresh within a period of three months from today……”
65.Applying the principles stated in the above judgments to the facts of the present cases, since in these cases there was failure on the part of the Board as well as Government in considering the relevant materials, the proceedings of the Board as well as the Government Orders are vitiated and so, they are liable to be set aside and the matters require re-consideration by the authorities.
66.Dr.Subramanya Swamy, the intervener, would among other things, submit that if once the power under Article 161 is exercised in favour of a convict to commute the death sentence into one of life imprisonment, there is an absolute bar to re-exercise the same executive power to give one more remission. He submitted that it is the settled law in England. But, he is not in a position to place any authority for this proposition. In Maru Ram’s case, it has been held that since the power of remission flows from the constitution, the limitations are also to be found only in the constitution. But, there are no such limitations or fetters found on the power of the Governor under Article 161 or in the Code. The learned Advocate General would submit that under Section 433(A) of the Code, which came to be upheld by the Hon’ble Supreme Court, when the State Government has been empowered to give further remission to a person who had already enjoyed the benefit of commutation of death sentence into one of life, there cannot be any restriction to the power of the Governor under Article 161 to re-exercise. Ofcourse it is true that the power under Article 161 and the power under the Code are totally distinct. But the power flowing from constitution is wider than the power flowing from the statute. When such a power has been given to the Government under the Code to re-exercise its discretion to further remit the sentence for a convict who has already got the benefit of commutation of death sentence into one of life imprisonment, hardly there can be any reason to say that such re-exercise is not possible for the Governor under Article 161. In the case cited supra, the Hon’ble Supreme Court has held that the power of the Governor under Article 161 should not yield to Section 433A of the Code. Therefore, I am not in a position to persuade myself to agree with the contention of the Dr.Subramanya Swamy.
67.The next contention of Dr.Subramanya Swamy is, since the offences were investigated by CBI., as per the limitations contained in Section 435, the State Government cannot consider the case of Mrs.Nalini for commutation as it is for beyond the power of the State Government under the Code. But, a perusal of Section 435 (1) would make it clear that there is no absolute bar on the power of the State Government to consider the case of a convict for remission. It only requires consultation with the Central Government before passing any order of remission. In the cases on hand, that stage was not reached by the State Government at all. If the Government, after considering the materials, decides to further remit the sentence, before passing any order of remission, it should consult the Central Government and take into account the outcome of the said consultation. But in this case, the State Government had no occasion to consult the Central Government since the State Government had at the threshold decided not to remit the sentence. It should be remembered that there is no such restriction under Article 161.
68.The next contention is that since in this case there has been conviction for an offence under the provisions of the Explosive Substance Act, which is a subject traceable to the executive power of the union, the State Government cannot pass an order of remission. To appreciate this, I carefully went through the judgment of the Designated Court and the Hon’ble Supreme Court. The Designated Court convicted Mrs.Nalini under Section 120(B) r/w Sections 3, 4 and 5 of the Explosive Substance Act and other penal provisions. But the Hon’ble Supreme Court modified the same and convicted her under Sections 120(B) r/w 302 I.P.C., and there is conviction for her under the Explosive Substances Act. Thus, there is no legal impediment for the State Government to exercise its poewr under Sections 433 and 433(A) of the Code and for the Governor to exercise his power under Article 161. So, this argument of Dr.Subramanya Swamy is rejected.
69.The learned Advocate General would submit that though the Board did not consider all the parameters enumerated in this Rule, the Board mainly considered the social history, the criminal behaviour of the petitioners and the degree of criminality to recommend not to grant premature release and the Government also duly considered all these three parameters and rightly accepted the recommendations of the Board. He would further submit that these three parameters are predominant and paramount and even if on consideration of the other parameters it had been found that they were satisfactory, the Board and the Government would not have taken a different decision. In other words, consideration of the other parameters in the cases of the petitioners would not have changed the decision of the Board and the Government.
70.There is some force in this argument. It is true that the gravity of the offence committed by the petitioners is so serious. Particularly, the offence committed by Mrs.Nalini falls within the ambit of “rarest of rare cases”. So, it is very relevant for the Board and the Government to consider the above stated three parameters mainly. The report of the Probation Officer recommending for premature release would not bind the Board and the decision of the Board would not bind the Government. It is ultimately the sovereign power of the Government which decides the issue as per the legal and social norms. When it is a question between the social interest and the individual interest, the social interest alone should be given priority. This view of the Hon’ble Supreme Court can be found in paragraph Nos.65 and 66 of Epuru Sudhakars case which reads as follows:-
65. Exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public considerations alone. The President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutations.
66. Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an executive action that mitigates or sets aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendants guilt or innocence. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. It can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. The Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of Government according to law. The ethos of Government according to law requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.”
71.As laid down by the Hon’ble Supreme Court, consideration is not for the benefit of the convict only but for the welfare of the people. This discretion should be exercised on public considerations alone. In the instant case, ofcourse, the Government and the Board have considered the above factors. But, it does not mean that the Government or the Board is not required to consider the other parameters. The Tamil Nadu Prison Rules is nothing but a regulation issued by the State Government. If the Government itself does not follow its own regulation in the case of few individuals, the action of the Government may tend to infringe the right of equality guaranteed under Article 14. So, the Board and the Government are obliged to follow the regulation to consider all the parameters enumerated therein. While doing so, of course, they are required to take a final decision having regard to the welfare of the people to use the discretion on public grounds. I would hasten to add that the consideration made in these cases both by the Board and the Government fall within the legal parameters, but the only defect is that the other parameters were not considered. It is for this reason only, the impugned proceedings of the Board and the impugned Government Orders are quashed as held by the Hon’ble Supreme Court in several decisions more particularly, in Laxman Naskar etc., v. Union of India & others (2000 (1) Crimes 215 (SC)); in Zahid Hussain and others v. State of West Bengal & another (2001(2) Crimes 42 (SC)) and in Life Convict Laxman Naskar v. State of West Bengal (2000 (3) Crimes 217 (SC)). The matters require reconsideration by the Board and the Government. While doing so, I am hopeful that the Board and the Government shall have due consideration of all the parameters and the guiding principles laid down by the Hon’ble Supreme Court in the cases cited supra. At any cost, it shall not be construed that this Court has given any opinion expressly or impliedly, on the question whether the petitioners are entitled for premature release or not.
72.In view of the forgoing discussions, I hold the following:-
(i)The petitioners do not have any vested right to demand for premature release either under Article 161 or under the Provisions of the Code. But they have got a right to demand for their cases being considered for premature release, if they satisfy the requirements of the Tamil Nadu Prison Rules.
(ii)In the cases on hand, even according to the Government, since the petitioners had satisfied the other requirements for the purpose of getting the eligibility to come within the zone of consideration, their cases were placed before the Board and then before the Government. Therefore, I hold that the cases of the petitioners deserve to be reconsidered by the Advisory Board and the Government to decide whether they should be given the benefit of premature release or not.
(iii)There are no fetters on the power of the Governor under Article 161 and the State Government under the Code to give further remission to Mrs.Nalini. There is no restriction on the power of the Governor to re-exercise his power under Article 161 to give one more remission.
(iv)I hold that in the case of Mrs.Nalini, though earlier commutation was granted under Article 161, and not under the Code, still there is no bar for the Government to consider her case for further remission under the provisions of the Code.
(v)The Board, in all these cases was not validly convened as per the regulations found in the form of the Tamil Nadu Prison Rules. The Board did not strictly adhere to the Rules and did not consider all the relevant materials as required under the Rules. The proceedings of Board are therefore, liable to be quashed.
(vi)The Government on its part also did not consider the relevant materials and the impugned Government Orders have been passed on the basis of the defective reports of the Board and so, the Government Orders are also liable to be quashed.
(vii)I hold that the matter requires re-consideration by a validly constituted Board in accordance with law to submit a report to the Government.
(viii)On receipt of the report of the Advisory Board, the Council of Ministers of the State may take appropriate decision either to refuse to grant premature release or to advise the Governor for premature release under Article 161 or the Government may decide either to grant premature release under Sections 433 & 433(A) of the Code or to refuse to do so.
(ix)It is made clear that this Court has not expressed any opinion as to whether the petitioners are entitled for premature release or not. The impugned orders are quashed only on the ground that these orders have not been passed in accordance with the procedure established under law. It is absolutely within the domain of the Government to act independently and judiciously in accordance with law.
73.In the result, the impugned proceedings of the Advisory Board and the Government Orders are quashed and the matters are remitted back to the Advisory Board for re-consideration as indicated above. The writ petitions are accordingly disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
74.Before parting with this order, this Court would like to record its appreciation of the excellent assistance rendered to this Court by Mr.S.Doraisamy, the learned counsel appearing for Mrs.Nalini and Mr.N.G.R.Prasad, the learned counsel appearing for Mr.Jayakumar and Mr.Robert Payas @ Kumaralingam, who were very fair in their submissions demonstrating their sound knowledge of law. Mr.G.Masilamani, the learned Advocate General ably assisted by Mr.V.Arun, the learned Additional Government Pleader exhibited his great ability and deep learning with extreme impartiality. This Court heard the pleasant but forceful arguments for three days.
75.At the end I would like to quote a philosophy of Mahatma Gandhiji, he said:
“Truth and love for Ahimsa is the only thing that counts. Where this is present, everything rights itself in the end. This is a law to which there is no exception.”
Let violence disappear and Ahimsa triumph.
jbm
To
1.The Secretary to Government,
State of Tamil Nadu,
Home(Prison0IV) Department,
Fort St. George,
Chennai 600 009.
2.Advisory Board,
Special Prison for Women,
Vellore,
Rep. by Collector of Vellore District.
3.The Additional Director General of Prison,
CMDA Tower-II, Egmore,
Chennai 8.
4.Ministry of Home Affairs,
Government of India,
New Delhi.
5.Union of India rep. by the Secretary,
Ministry of Home Affairs,
New Delhi 110 001.
6.The Advisory Board for the
prematurely release of life convicts,
Rep. by its Chairman,
Collector of Vellore District,
Vellore.
7.The Superintendent,
Vellore Prison,
Vellore 2