Durairaj and Manickam vs State <BR>Balan @ Balendran, Nanda @ Nandakumar and Sathish @ Sathish Kumar Vs State <BR>Premananda @ Premkumar and Kamalananda Vs State

Prabha Sridevan, J.—The Government of Tamil Nadu passed an order of premature release in respect of prisoners who are serving life

sentence, in connection with the 100th Birthday Celebrations of the former Chief Minister of Tamil Nadu, Arignar Anna. These three writ petitions

have been filed seeking writ of habeas corpus, praying to release the petitioners in the respective writ petitions in terms of the said Government

Order, alleging violations of their fundamental right to life and liberty. H.C.P. Nos. 1283 and 1303 of 2008 stand on the same footing and H.C.P.

No. 985 of 2008 stands on a different footing.

We will take up H.C.P. No. 985 of 2008 first. This petition was originally filed for consideration of the petitioner''s case by the State Advisory

Board. That relief was granted pending the H.C.P. Thereafter, an additional affidavit has been filed alleging discrimination. The petitioners were

tried for the offences u/s 302 read with 34; Sections 394 and 397 read with 34 of the Indian Penal Code. They were convicted and sentenced to

undergo life imprisonment and rigorous imprisonment for seven years; the sentences were ordered to run concurrently. The appeals were

dismissed. The petitioners had undergone approximately 17 years in prison. In the additional affidavit filed, they have referred to one Haja

Mohideen and one Karnan who have also been convicted under the same sections as the petitioners and had been released prematurely. The

denial of the same relief is a gross violation of their fundamental rights.

Insofar as H.C.P. Nos. 1283 and 1303 of 2008 are concerned, the petitioners have been sentenced to undergo life imprisonment and rigorous

imprisonment for seven years. The appeals preferred by them were dismissed. The SLP and the Review Petition was also dismissed. The detenus

are now serving sentence for the last 13 years.

In the judgment delivered by the learned Sessions Judge, a specific direction has been given as follows:

Any remission of sentence or amnesty on any special occasions to be announced either by the State Government or Central Government in future

will not apply to the sentence of imprisonment imposed on all the accused in this case as they are convicted for grave offences against them.

The period of sentence already undergone by all the accused is directed to bet set off u/s 428, Cr. P.C. against the sentence now imposed.

The learned senior counsel appearing on behalf of the petitioners submitted, in answer to the preliminary objection raised by the learned

Additional Public Prosecutor regarding the maintainability of the petitions, that when the question relating to the fundamental rights of prisoners is

raised, then notwithstanding the fact that they are in prison serving a sentence imposed in accordance with law, a habeas corpus petition is

maintainable. He relied on several judgments to support his case. He also submitted that the State cannot discriminate between prisoners similarly

placed and exercise the power of remission to some and deny it to others. As regards the petitioners in H.C.P. Nos. 1283 and 1303 of 2008, he

submitted that the Court had no power to trespass into what is exclusively the domain of the Executive for grant of remission, and by a judicial

order, foreclose the right of the prisoner to be set free forever. The Learned senior counsel submitted that in Antulay''s case, the Supreme Court

had categorically stated that when the judicial order is without jurisdiction, then the petitioner has no other resort but to approach the Court for

relief and for this purpose, he relied on several decisions.

The learned Additional Public Prosecutor, on the other hand, submitted that the writ petitions are not maintainable. He submitted that the power

to grant remission vests purely with the Executive and even if the State decided to set free a certain class of prisoners and not others, violation of

Article 14 of the Constitution can not be alleged. As regards H.C.P. Nos. 1283 and 1303 of 2008, he submitted that in view of the order passed

by the Supreme Court, the writ petitions must be dismissed.

Learned senior counsel relied on the following decisions. In Sunil Batra Vs. Delhi Administration and Others etc., , the Supreme Court held as

follows:

The writ is not and never has been a static, narrow formalistic remedy. Its scope has grown to achieve its purpose - the protection of individuals

against erosion of the right to be free from wrongful restraints on their liberty.

...

We, therefore, affirm that where the rights of a prisoner, either under the Constitution or under other law, are violated the writ power of the

court can and should run to his rescue.

...

The court need not adopt a ''hands off'' attitude ... in regard to the problem of prison administration. It is all the more so because a convict is in

prison under the order and direction of the court.

Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods ""right, just and fair"" - vide Maneka

Gandhi (supra).

...

No iron curtain can be drawn between the prisoner and the Constitution.

It is, therefore, the court''s concern, implicit in the power to deprive the sentences of his personal liberty, to ensure that no more and no less than is

warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit

limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy

advantages and liberties to avoid or water down the deprivation implied in the sentence the Prison Establishment will be called to order for such

adulteration or dilution of court sentences by executive palliation, if unwarranted by law.

In Gopal Vinayak Godse Vs. The State of Maharashtra and Others, , the Supreme Court held thus:

This is a petition under Article 32 of the Constitution for an order in the nature of habeas corpus claiming that the petitioner has justly served his

sentence and should, therefore, be released.

...

The petitioner made an impassioned appeal to us that if such a construction be accepted, he would be at the mercy of the appropriate

Government and that the said Government, out of spite, might not remit the balance of his sentence, with the result that he would be deprived of the

fruits of remissions earned by him for sustained good conduct, useful service and even donation of blood. The Constitution as well as the Code of

Criminal Procedure confer the power to remit a sentence on the executive Government and it is in its exclusive province. We cannot assume that

the appropriate Government will not exercise its jurisdiction in a reasonable manner.

In Mohd. Munna v. Union of India 2006 (2) L.W. (Crl.) 569, it was held thus:

Thus, all the contentions raised by the petitioner fail and the petitioner is not entitled to be released on any of the grounds urged in the writ petition

so long as there is no order of remission passed by the appropriate government in his favour. We make it clear that our decision need not be taken

as expression of our view that petitioner is not entitled to any remission at all. The appropriate government would be at liberty to pass any

appropriate order of remission in accordance with law.

In Epuru Sudhakar and Another Vs. Govt. of A.P. and Others, , it was held thus:

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.

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 defendant''s 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.

In Haja Mohideen v. Government of India 1989 L.W. (Crl.) 546, a Division Bench of this Court entertained the H.C.Ps. filed by the petitioners

therein because the petitions addressed by the death row prisoners were kept in cold storage for too long. In G. Srinivasan v. P. Shanmugam 1995

(1) L.W. (Crl.) 80, this Court held as follows:

The provisions contained in Section 428 of the Code state that the period of detention prior to the date of conviction shall be set off against the

term of imprisonment imposed on an accused and the liability of the person to undergo imprisonment, shall be restricted to the reminder, if any, of

the term of imprisonment imposed on him. It is obvious, therefore, that the statute mandates that the set off must be regarded as part of the

sentence imposed upon and therefore the set off period is also a period of confinement.

In A.R. Antulay v. R.S. Nayak 1988 S.C.C. (Cri.) 372, the Supreme Court held that:

Four valuable rights, it appears to us, of the appellant have been taken away by the impugned directions:

(i) The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament.

(ii) The right of revision to the High Court u/s 9 of the Criminal Law Amendment Act.

(iii) The right of first appeal to the High Court under the same section.

(iv) The right to move the Supreme Court under Article 136 thereafter by way of a second appeal, if necessary.

and the Supreme Court intervened, to review the order passed earlier. In Som Mittal v. Government of Karnataka (2008) 2 S.C.C. (Cri.) 1, the

Supreme Court held as follows:

The second issue involves the recommendations made to the Government of U.P. and directions issued to all States and Union Territories in

paras 17 to 39 of the concurring judgment. The appeal related to the question whether the complaint against the appellant disclosed the ingredients

of an offence u/s 25 of the Karnataka Shops & Commercial Establishments Act, 1961. The appeal did not relate to grant of anticipatory bail nor

did it relate to rights of arrested persons. This Court has repeatedly cautioned that while rendering judgments, courts should only deal with the

subject matter of the case and issues involved therein. Courts should desist from issuing directions affecting executive or legislative policy, or

general directions unconnected with the subject matter of the case. A court may express its views on a particular issue in appropriate cases only

where it is relevant to the subject matter of the case.

In the above case, the Supreme Court set aside the directions given by a two Judge Bench in Som Mittal Vs. Govt. of Karnataka, .

In State of Haryana Vs. Mahender Singh and Others, , the Supreme Court held as follows:

A. 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. The State of Punjab, pursuant to the said power, framed rules.

B. The Rules put the convicts into three categories. It also defines the term ''life convicts''. Whereas a classification had been made from amongst

the convicts having regard to the gravity of the offences committed by them, indisputably no classification has been made on the basis of the

number of deaths which might have taken place at the hands of the persons. The State apart from making the Statutory Rules, as noticed

hereinbefore, had been issuing executive instructions.

C. 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.

D. The question, however, which would inter alia arise for consideration is as to whether new policy decision adopted by the State of Haryana will

have a prospective operation.

E. 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.

F. It is now well settled that any guidelines which do not have any statutory flavour are merely advisory in nature. They cannot have the force of a

statute. They are subservient to the legislative act and the statutory rules.

G. Whenever, thus, a policy decision is made, persons must be treated equally in terms thereof. A'' fortiori the policy decision applicable in such

cases would be which was prevailing at the time of his conviction.

H. Furthermore, if the Punjab Rules are applicable in the State of Haryana in view of the State Reorganisation Act, no executive instruction would

prevail over the Statutory Rules. The Rules having defined ''convicts'' in terms whereof a ''life convict'' was entitled to have his case considered

within the parameters laid down therein, the same cannot be taken away by reason of an executive instruction by redefining the term ''life convict''.

It is one thing to say that the ''life convict'' has no right to obtain remission but it is another thing to say that they do not have any right to be

considered at all. Right to be considered emanates from the State''s own executive instructions as also the Statutory Rules.

I. We are, therefore, of the opinion that the High Court might not be correct in holding that the State has no power to make any classification at all.

A classification validly made would not offend Article 14 of the Constitution of India. We, thus, although do not agree with all the reasonings of the

High Court, sustain the judgment for the reasons stated hereinbefore.

In Pusparaj Vs. State of Tamil Nadu, , the petitioner who had served 131/2 years of actual sentence claimed that he was entitled to the benefit

of G.O. Ms. No. 873 dated 14.9.2006, by which the Governor of Tamil Nadu remitted the unexpired portion of sentence of life imprisonment in

respect of 472 convicts on the occasion of the 98th Birthday of the former Chief Minister. The petitioner in that case relied on Maru Ram, Epuru

Sudhakar, Kehar Singh and other decisions on this issue. The Division Bench held as follows:

It is fairly well settled that 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 as has been consistently held by the Supreme Court. In Maru Ram''s case (1981 (1) SCCC

107, the Supreme Court came to the conclusion that the power under Article 72 and 161 can be exercised by the Central and State Governments

and not by the President or Governor on their own. The advice of the appropriate Government binds the head of the State. The Court also came

to the conclusion that considerations for exercise of power under Articles 72 or 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 those rare

cases will the Court examine the exercise. In para 62 of the judgment in Maru Ram case, the Court had observed:

An issue of deeper import demands our consideration at this stage of the discussion. Wide as the power of pardon, commutation and release

(Articles 72 and 161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady

course. Here, we come upon the second constitutional fundamental which underlies the submissions of counsel. 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.

It was further held 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.

As regards discrimination, the Division Bench observed as follows:

Bearing in mind the parameters of judicial review in relation to grant of pardon by the Governor, when we examine the present case, the order

of exclusion of petitioner from the benefits cannot be said to be non-application of mind or mala fide. It is noticed that the ADGP had sent letter

No. 24974/PS1/2006 dated 8.9.2006 stating that the petitioner and co-accused were involved in sensational murder case of a 13 years old

innocent boy in a brutal manner and recommended not to consider their cases for premature release on en-masse release. The Government seems

to have taken note of the offence and the back ground of the petitioner and co-accused in not considering their case for premature release on en-

masse release and therefore, it cannot be said to suffer from arbitrariness. It cannot be said that the irrelevant and extraneous materials entered into

the decision making process in excluding the petitioner from getting remission as per G.O. Ms. 873. The contention that the petitioner was

discriminated is unnacceptable.

In that case, the Government stated that the petitioner''s case would be considered for release under the Advisory Board Scheme as per Rule

341(2) of the Tamil Nadu Prison Rules, 1983. Therefore, the habeas corpus petition was disposed of directing the petitioner to file a fresh

representation to the Government for remission under Sections 432 and 433 and the respondents were also directed to consider the same in

accordance with the Rules and dispose of the same within a time stipulated therein.

In Mohan Singh Vs. The State of Madhya Pradesh, , it was held as follows:

The learned Deputy Advocate-General submitted that no prisoner has a right to remission u/s 432 of the Code of Criminal Procedure and that a

petition under Article 226 of the Constitution is not maintainable as the power to grant remission is discretionary. The fallacy in this argument is that

the petitioner is not invoking any right of remission u/s 432 but his fundamental rights under Articles 14 and 15(1). It is well settled that convicts are

not wholly denuded of their fundamental rights and there is no iron curtain between prisoners and the Constitution. (See Sunil Batra Vs. Delhi

Administration and Others etc., ). (1) If the State decides to grant certain remission to prisoners of a particular caste or race and if the State denies

the same to other prisoners on the basis of their caste and race only, the prisoners who are so denied the benefit are entitled to invoke the

fundamental right under Article 15. The power to grant remission u/s 432 of the Code is no doubt discretionary but it is subject to the constitutional

rights of prisoners and cannot be used so as to discriminate prisoners on the basis of caste and race only. The Deputy Advocate-General relied

upon the cases of Gopal Vinayak Godse Vs. The State of Maharashtra and Others, and State of Madhya Pradesh Vs. Ratan Singh and Others,

for the submission that power to grant remission is discretionary. These cases have no application here as they do not deal with the effect of

Articles 14 and 15 on the exercise of the power to grant remission. It was also submitted by the learned Deputy Advocate-General that the

prisoners of the Scheduled Castes and the Scheduled Tribes who were granted special remissions have been released and striking down of the

special remissions allowed to them would be wholly unjust as the prisoners released will have to be brought back in jail and that will not bring any

particular benefit to the petitioner. The answer to this argument is simple. The petitioner does not want that the special remissions which have been

granted to the prisoners of the Scheduled Castes and the Scheduled Tribes should be withdrawn. The petitioner seeks to enforce his right to

equality by saying to the authorities; ""You have granted special remissions to the prisoners of the Scheduled Castes and the Scheduled Tribes on

the basis of caste and race only which is not covered by Article 15(4), therefore, treat me and other prisoners equally and give us the same

remissions which have been allowed to the prisoners of the Scheduled Castes and the Scheduled Tribes"". In our opinion, the petitioner''s stand is

fully justified.

We will now take up H.C.P. Nos. 1283 and 1303 of 2008. In this case, the learned Sessions Judge had given certain directions, which have

been extracted above. On appeal, this Court confirmed the findings, conviction and the sentence subject to the modification that the imprisonment

awarded to A-4, A-6 and A-7 shall be undergone by them concurrently. There was no modification of the directions of the learned Sessions

Judge. The Supreme Court dismissed the appeal preferred by the petitioners vide the decision in 2007(1) M.L.J. (Crl.) 1527 [Kamalanantha v.

State of Tamil Nadu]:

Having regard to the amplitude of the gravity of the offence, perpetrated in an organized and systematic manner, the nature of the offence and its

deleterious effects not only against the victims, but the civilized society at large, needs to be curbed by a strong judicial hand. We are inclined to

confirm the sentence and conviction as recorded by the Trial Court and confirmed by the High Court. The order of the Trial Court that any

remission of sentence or amnesty on any special occasions announced or to be announced by either by the Central or the State Government shall

not apply to the sentence and imprisonment imposed on all the accused, is also maintained. Appeal dismissed.

In view of the specific confirmation of the directions given by the learned Sessions Judge, we cannot interfere with or set aside the same. It is to

be noted that Antulay and Som Mittal''s cases are different, since they are cases where it was the Supreme Court which either modified or set

aside the earlier directions of the Supreme Court. We cannot dilute or modify the directions of the Supreme Court. So, after recording the

submissions, we must dismiss the petition.

As regards the other petition, viz. H.C.P. No. 985 of 2008, we are unable to see any of the special circumstances that warrant interference

under Article 226 of the Constitution. Of course, the petitioner in this case has taken an additional ground of discrimination that the other prisoners

similarly placed have been released. However, the refusal to remit the petitioner''s sentence is admittedly according to the rules. Petitioner''s

grievance is that this rule has not been invoked in the case of Karnan or Haja Mohideen. The Government Order itself came up for attack and

subject to certain safeguards, this Court refused to stay the same. In Epuru Sudhakar''s case, which was filed under Article 32 of the Constitution

of India, the son of the person murdered challenged the grant of remission to the respondents in the said petition, who had been found to be guilty

of the murder of his father, on the ground that such order was illegal and that the remission was granted without any application of mind and that

the recommendation for remission had been made on irrelevant and extraneous materials. If the release of any prisoner is attacked as in the case of

Epuru Sudhakar''s case, it will be decided in accordance with law.

In an eloquent paragraph in Maru Ram and Others Vs. Union of India (UOI) and Others, , this is what the Supreme Court says:

... The court, if it finds frequent misuse of this power may have to investigate the discrimination. The proper thing to do, if Government is to

keep faith with the founding fathers, is to make rules for its own guidance in the exercise of pardon power keeping, of course, a large residuary

power to meet special situations or sudden developments. This will exclude the vice of discrimination such as may arise where two persons have

been convicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as

religion, caste, colour or political loyalty.

Therefore, we are unable to accept the arguments advanced on behalf of the petitioners that another person has been granted remission and hence,

their case should also be considered on a similar footing. So this petition also deserves to be dismissed.

In G.O. Ms. No. 1762, Home Department, dated 20.7.1987, the Government had accepted the recommendation of the All India Committee

on Prison Reforms in paragraph 17.2, Chapter XX of its report and directed that the following category of prisoners should not be considered for

premature release:

i) Prisoners convicted of rape, forgery, dacoity, terrorist crimes, offences against the State and prisoners sentenced under Sections 224, 376, 396

- 400, 402, 467, 471, 472, 474, 489A, 489B and 489D of the Indian Penal Code;

ii) Prisoners convicted of economic offences, black marketing, smuggling and misuse of power and authority; and

iii) Prisoners sentenced under Prevention of Corruption Act, Suppression of Immoral Traffic in Women and Girls Act, Drugs and Prevention of

Food Adulteration Act.

Therefore, Rule 341 of the Tamil Nadu Prison Rules was suitably amended to exclude the aforementioned categories of convicts from premature

release under the Advisory Board Scheme. By Letter No. 1358, Home Department, dated 10.11.1994, the Government directed that prisoners

falling within the scope of G.O. Ms. No. 1762 will be considered by the Government under Article 161 of the Constitution for premature release

on humanitarian grounds. The petitioners were convicted u/s 392 read with 397 of the Indian Penal Code and therefore, they come within the

scope of G.O. Ms. No. 1762 and hence, they are not entitled as a matter of right for premature release. The Advisory Board takes into account

various factors while deciding cases for premature release. In Mahender Singh''s case (supra), the Supreme Court had held that the High Court

was not correct in holding that the State has no power to make any classification and that a classification validly made would not offend Article 14

of the Constitution of India. Therefore, if by virtue of statutory rules, a classification is made of prisoners in respect of whom orders for premature

release would not be made, such rules as per the above judgment of the Supreme Court would not offend Article 14 of the Constitution. The

Advisory Board had been convened and on the basis of the reports obtained from the District Collector and other authorities, had decided not to

recommend the case of the petitioner in this case for premature release. In these circumstances, we are unable to sustain any of the objections

raised on behalf of the petitioner.

In the result, all the habeas corpus petitions are dismissed.