S. Nalini Srikaran vs State of Tamil Nadu

S. Nagamuthu, J.—The challenge in this writ petition is to the validity of clause (v) of paragraph 1 of G.O.Ms No. 873 dated 14.09.2006 issued by the Government of Tamil Nadu.

The petitioner is the first accused in the brutal killing of the former Prime Minister of India Mr. Rajiv Gandhi and 5 others. A case was initially registered by the Tamil Nadu Police and the investigation was taken up. Later, the investigation was transferred to the Central Bureau of Investigation. A special investigation team was formed, which laid charge sheet against 41 accused for the offences under Sections 120(B) r/w 302, 326, 324, 291,212 and 216 I.P.C.; Sections 3,4 and 5 of Explosive Substances Act; Section 25of the Arms Act; Section 12 of the Passport Act; Section 14 of the Foreigners Act; Section 6(1)(A) of the Wireless Telegraphic Act and Sections 34 and 35 of the Terrorist and Disruptive Activities (Prevention) Act 1987(hereinafter referred to as "TADA Act") Out of 41 accused, only 26 accused faced the trial before the designated Court under TADA Act. The designated Court by judgment dated 21.09.1998 convicted all the 26 accused. The petitioner was imposed sentence of death. On appeal, the Hon''ble Supreme Court by judgment dated 01.05.1999 confirmed the sentence of death imposed on her.

The petitioner was arrested on 14.06.1991. she was lodged in the Special Prison for Women at Vellore as condemned prisoner. Thereafter, she made an application to the Governor of Tamil Nadu for clemency and the same was rejected. Challenging the said order, she 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 to the Governor for fresh consideration. Thereafter, the Council of Ministers, Government of Tamil Nadu advised the Governor to commute the death sentence of the petitioner into one of imprisonment for life. On accepting the said advice, the Governor of Tamil Nadu in exercise of the power under Article 161 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, she has been languishing in the Special Prison for Women at Vellore as life convict.

While so, the Government of Tamil Nadu in exercise of the power under Article 161 of the Constitution of India, on the advice of the Council of Ministers, issued order in G.O(Ms)No. 873 Home (Prison IV) Department dated 14.09.2006 for premature release of prisoners, who had completed 10 years of actual imprisonment as on 15.09.2006, on the occasion of 98th Birth Day of Peraringnar Anna. As many as 472 convicts whose names were annexed to the order and confined in various central prison and special prisons for women in the State were granted remission of the entire unexpired portion of sentence of imprisonment for life subject to certain conditions mentioned in paragraph 1 of the said order. But the petitioner was not one among the 472 convicts, who were granted remission. The said G.O. Reads as follows:

ORDER:

In the Interest and Welfare of the Prisoners and on the occasion of the 98th Birth Day of Peraringnar Anna, the Government have decided to release all life convicts who had completed 10 years of actual imprisonment on 15,.09.2006 subject to the following conditions:

i) That the prisoners who are convicted for the offences specified in G.O.Ms No. 1762, Home Dated 20.07.1987 or not be eligible for this concession;

ii) That their general behavior in the prison should have been satisfactory;

iii) That the life of the convict would be safe if released;

iv) That they would be accepted by the members of their families or any other social organization which can give guarantee for the safety of their lives;

v) That their cases do not come under Sec-tion435 Criminal Procedure Code; and

vi) That they will execute bonds, according to the usual terms and conditions.

The Additional Director General of Prisons, Chennai has furnished a list of 472 life convict prisoners including 16 women life convict prisoners, who have completed 10 years of actual imprisonment, as on 15.09.2006 and are eligible for premature release.

The Government after careful examination accept the list of life convict prisoners who have completed 10 years of actual imprisonment as onl5.09.2006 recommended by the Additional Director General of Prisons, Chennai, for premature release on the occasion of the 98th Birth Day of Peraringnar Anna, as furnished in the Annexure to this order. Accordingly, they direct that 472 number of life convict prisoners including 16 women life convict prisoners who have completed 10 years of actual imprisonment as on 15.09.2006 as furnished in the Annexure to this order be released prematurely on 15.09.2006. However, they direct that this order shall not be applicable to those prisoners who have been convicted by Court of Criminal Jurisdiction of other States /union Territories/Other countries but undergoing imprisonment in this State.

In Exercise of the Powers conferred under Article 161 of the Constitution of India, the Governor of Tamil Nadu hereby remits the unexpired portion of sentence of imprisonment for life passed on the 472 convicts as annexed to this order, confined in various central prisons and Special Prisons for women in the State, subject to the conditions mentioned in para 1 above.

To know the exact impact of clause (v) of the CO., it is necessary to extract Section 435 of the Code of Criminal Procedure.

Section 435 Cr. P.C: State Government to act after consultation with Central Government in certain cases:

(1) The powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence:

(a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or

(b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(c) which was committed by a person in the service of the Central Government, while acting or purporting to act in the discharge of his official duty, shall not be exercised by the State Government except after consultation with the Central Government.

2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends.

The petitioner contends that as per Section 433 and 433(A) of the Code of Criminal Procedure, since she had completed actual imprisonment for 14 years on 17.06.2005 itself, she is entitled for premature release. Though the petitioner satisfies all the other conditions enumerated in the CO., since she falls within the purview of clause (v) of paragraph 1 of the CO., she was not granted remission by the Government. Aggrieved over the said clause (v) of paragraph 1 of the CO., the petitioner has come forward with the present writ petition.

The learned counsel for the petitioner submits that clause (v) of the para-graph 1 of G.O.Ms No. 873 dated 14.09.2006 is arbitrary, and discriminatory and thus violative of Articles 14 and 21 of the Constitution of India.

The further contention of the learned counsel for the petitioner is that it hardly matters whether the case was investigated by C.B.I, or any other agency. Making a classification of the convicts whose cases were investigated by C.B.I. as a separate class is discriminatory and the same does not advance the objects sought to be achieved. Though similarly placed life convicts, whose cases were investigated by the agencies other than C.B.I, were given the benefit of the CO. for remission, it is highly discriminatory, that the petitioner has been deprived of the said benefit, solely on the ground that the case was investigated by the C.B.I.

Apart from the above, the learned counsel would submit the following:

(1) Clause (v) of the impugned CO. was not brought to the notice of the Governor and thus the Governor had no occasion to consider the need for the said clause;

(2) the Governor has transgressed his jurisdiction without having any materials;

(3) the Governor has considered materials which are extraneous rather than considering the relevant materials; and

(4) the impugned clause (v) was not intended in the public interest. Thus the clause (v) is liable to be quashed.

The learned Advocate General appearing for the State would submit the following:

1) No Convict has any right to demand for premature release under Article 161 of the Constitution of India;

(2) The State Government has power to make classification of the life convicts whose cases were investigated by C.B.I. as a separate clause, which does not offend Article 14 of the Constitution of India;

(3) The Government has power to impose any condition for the premature release; and

(4) unless the classification is found to be unconscionable, unreasonable and arbitrary, the decision of the Government cannot be interfered with by this Court.

It is no more res Integra that life imprisonment means prison life till the last breath of the convict. As per the regulations of the Government, the remissions earned by him would not free a life convict. Unless an order of remission is made by the Government under the Code of Criminal Procedure or under Article 161 of the Constitution of India the life convicts have to spend rest of their life only in Prison and the said legal position has been well settled in a catena of decisions by Constitution Benches of the Hon''ble Supreme Court in Gopal Vinayak Godse v. State of Maharashtra reported in 1961 (1) Cri.L.J. 786 followed by Maru Ram and Others Vs. Union of India (UOI) and Others, , Kehar Singh and Another Vs. Union of India (UOI) and Another, , Epuru Sudhakar and another v. Govt. of A.P. and Others reported in (2006) 8 Supreme Court Cases 161 and in State of Haryana v. Mahendra Singh and others reported in 2007 (4) Crimes 289 (SC). I do not propose to extract the relevant portions of these judgments, as the same would only add to the length of this order. There is no controversy regarding the said settled position of law.

There can also be no doubt that it is absolutely within the domain of the Government to give remission for an individual convict or a class of convicts, so long as the decision of the Government is not either arbitrary, unreasonable, discriminatory or actuated by malice.

In the case of State (Govt. of NCT of Delhi) Vs. Prem Raj, , the Hon''ble Supreme Court has held as follows:

Article 72 of the Constitution of India, 1950 (in short the Constitution) confers upon the President power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. The power so conferred is without prejudice to the similar power conferred on the Court Martial or the Governor of a State. Article 161 of the Constitution confers upon the Governor of a State similar powers in respect of any offence against any law relating to a matter to which the executive power of the State extends. The power under Articles 72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as, Sections 432, 433 or 433-A of the Code or by any prison rules. But the President or the Governor, as the case may be, must act on the advice of the Council of Ministers.

Yes, the Hon''ble Supreme Court has well settled the legal position that the power of Governor under Article 161 is absolute and it cannot be fettered by any of the provisions of the Code of Criminal Procedure, which include Section 435 also. But, such decision of the Governor should not infringe Article 14 and 21 of the Constitution of India.

In the above legal background, the question before this Court now is whether clause (v) of paragraph 1 of the impugned G.O. is discriminatory, unfair and unreasonable as claimed by the petitioner.

It is well settled that to bring a legislation within the ambit of reasonable classification, under Article 14 of the Constitution of India, the classical tests are:

(1) the classification must be founded on an intelligible differentia which distinguishes persons who are placed in a group from others who are left out of the group.

2) such differentiation must have a rational relation to the object sought to be achieved by the Act.

It was held in V.C. Shukla Vs. State (Delhi Administration), .

in applying Article 14 mathematical precision or nicety or perfect equanimity are not required. Similarity rather than identity of treatment is enough. The courts should not make a doctrinaire approach in construing Article 14 so as to destroy or frustrate any beneficial legislation. What Article 14 prohibits is hostile discrimination and not reasonable classification for the purpose of legislation. Furthermore, the legislature which is in the best position to understand the needs and requirements of the people must be given sufficient latitude for making selection or differentiation and so long as such a selection is not arbitrary and has a rational basis having regard to the object of the Act, Article 14 would not be attracted. That is why this Court has laid down that presumption is always in favour of the constitutionality of an enactment and the onus lies upon the person who attacks the statute to show that there has been an infraction of the constitutional concept of equality. It has also been held that in order to sustain the presumption of constitutionality, the court is entitled to take into consideration matters of common knowledge, common report, the history of the times and all other facts which may be existing at the time of the legislation. Similarly, it cannot be presumed that the administration of a particular law would be done with an "evil eye and an unequal hand". Finally, any person invoking Article 14 of the Constitution must show that there has been discrimination against a person who is similarly situate or equally circumstanced.

In the case of State of Haryana and Another Vs. Jai Singh, , while similar classification made by the State of Haryana in the matter of remission u/s 432 Cr. P.C, came to be challenged before the Hon''ble Supreme Court, while upholding the said classification, the Hon''ble Supreme Court has held as follows:

The gravity of the offence and the quantum of sentence prescribed in the Court could be a reasonable basis for a valid classification if the object of such classification is to grant or not to grant remission. The offences of rape, dowry death, abduction and murder of a child below 14 years, offences coming under Sections 121 to 130 IPC, dacoity, robbery etc. are the offences for which the Code has prescribed the sentence of rigorous imprisonment extending up to life, therefore, from the very nature of the sentence which the offence entails, the said offences can be Categorised as grave offences, therefore, they can be aptly classified as grave offences, which classification will be a valid classification for the purpose of deciding whether the persons who have committed such offences should be granted remission or not. On this basis, the State Government having decided not to grant remission to these offenders/ offences which carry life imprisonment, should not be granted remission, is justified in doing so.

Similarly, the offences under the NDPS and the TADA Acts, apart from carrying heavy penal sentences are offences which could be termed as offences having serious adverse effect on the society, cognizance of which is required to be taken by the State while granting remission, therefore, they can also be classified as offences which should be kept out of the purview of remission.

The offences enumerated in Sections 121 to 130 IPC are the offences against the State, though some of them may not be punishable with life imprisonment, still taking into consideration the nature of offence which undermines the security of the State, can be classified for exclusion from the benefit of remission.

Again the offences under the Foreigners Act, the Passport Act, the Official Secrets Act also being offences against the State. They can be classified as offences which will not be entitled to the benefit of remission. The persons who have indulged in the breach of mandate of the jail manual can also be classified as the offenders who should not be granted the incentive of remission because of their conduct during the period of their conviction. Therefore, the offences excluded from the benefit of remission under the impugned notification have been properly classified which classification, is a valid classification for the purpose of making them ineligible for the grant of remission.

In Sanaboina Satyanarayana Vs. Government of Andhra Pradesh and Others, in paragraph 9, the Hon''ble Supreme Court has said as under;

The plea of discrimination needs mention only to be rejected. The remission proposed in commemoration of 50 years of the Indian Republic itself is a boon and concession to which no one had any vested right. As to what classes of persons or category of offenders to whom the remission has to be extended is a matter of policy, particularly when it is also a constituent power conferred upon the constitutional functionary and Head of the State Government, larger area of latitude is to be conceded in favour of such authority to decide upon the frame and limits of its exercise under Article 161 itself. The Constitution of India itself has chosen to countenance the claims of women for favorable treatment and acknowledge the fact that sex is a sound classification. The issue in question being one pertaining purely to the area policy and political philosophy of the State, the courts except in the rarest of rare cases, cannot be called upon to adjudicate on the desirability or wisdom of such decisions. It is no exaggeration to place on record that instances of violence against women and children, particularly females, such as rape, dowry deaths, domestic violence, bride-burning, molestation, brazen ill-treatment of horror, vulgarity and indecency are not only rampant but on phenomenal increase casting a shadow of shame on the society, the culture and governance of this country and it seems that cruelty to women and problems of battered wives have become ironically almost a worldwide phenomenon. Such a situation deserves a special treatment in the hands of the State. Consequently, the classification in this regard to keep away convicts of crimes against women from the benefits of remission under the order dated 25-1-2000 cannot be said to violate any reasonable principle or concept of law so as to call for its condemnation in exercise of the powers of judicial review. The classification therefore sounds just, reasonable, proper and necessitated in the larger interests of society and greater public interest and consequently, cannot by any stretch of imagination be branded to be invidious to attract the vice of Article 14 of the Constitution of India. A careful scrutiny of the various excepted classes of convicts only shows that the real object is to ensure that those who prey on the community and violate fundamental values of mankind, society and national interest should not get undeserved benefit.

Having regard to the above legal position, if we analyse the classification made in the impugned G.O., we have to, at first, find out the rationale behind such classification. The learned Advocate General would submit that the cases which are investigated by C.B.I are serious in nature affecting the Society at large and that weighed in the mind of the Government not to consider the convicts whose cases were investigated by C.B.I to extend the benefit of remission. He would further submit that such classification is very reasonable having regard to the interest of the Society and therefore, they cannot be stated to be unreasonable. Further it is a policy decision of the Government.

In paragraph 65 of the judgment in the case of Epuru Sudhakar v. Government of A.P. (cited supra) the Hon''ble Supreme Court held as follows:

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.

As laid down in the above judgment, when the interest of the Society was considered by the Government to say that the offences investigated by C.B.I are grave in nature and therefore, the Government is not willing to extend the benefit of remission to those convicts, I do not find any reason to hold that the said classification is unreasonable. The principles stated in State of Haryana and Another v. Jai Singh cited supra also squarely apply to the instant case.

The learned Advocate General would rely on the judgment of this Court in the case of Mukundan @ Suresh v. State rep. by Public Prosecutor, C.B.I, S.P.E., Madras and another reported in 2000 1 MW Cri 153, wherein after elaborately considering the judgment of the Hon''ble Apex Court, in Ahok Kumar @ Gobu v. Union of India and others reported in 1991 SCC (Cri) 845, State of Punjab and others v. Joginder Singh and others reported in 1990 Supreme Court Cases (Cri) 429, and various other judgments, this Court has negatived the claim for remission by holding that the convicts, whose cases were investigated by C.B.I are not entitled for the benefit of the G.O. In my considered opinion, the observations made in the said judgment cannot be made applicable to the facts of the present case, since the facts are distinguishable. In the reported case, a clause in the said G.O which is akin to clause (v) of paragraph 1 of the present G.O was not challenged. That was a petition filed only u/s 482 Cr. P.C seeking for a direction to extend the benefit of G.O. to the petitioners therein, whose cases were investigated by C.B.I. The Court said that it is not within the power of the Court to extend the benefit of G.O to the petitioners, since there is a restriction in the said G.O. in respect of convicts, whose cases were investigated by C.B.I. But, in the case on hand, the vires of clause (v) of paragraph 1 of the G.o No. 873 is challenged on the ground that it offends Article 14 of the Constitution of India and so, the observations made in the said case do not advance the case of the Government.

The contentions of the learned counsel that clause (v) of the paragraph 1 of the G.O.Ms.873 was not brought to the notice of the Governor; the Governor had no occasion to consider the said clause; the Governor has transgressed his jurisdiction without having materials before him; the Governor has passed the order without application of mind; and the Governor has taken into consideration extraneous materials rather than considering the materials which are relevant are only to be rejected for the following reasons. The learned Advocate General would submit that without having any pleading or averment raising all these points in the affidavit, the petitioner cannot be allowed to raise the same at the time of arguments. He would further submit that the respondent cannot be taken by surprise by such arguments and so, the said contentions are liable to be rejected. I find every force in the said argument of the learned Advocate General.

In the case of The State of Andhra Pradesh and Another Vs. K. Jayaraman and Others, , it was held by the Hon''ble Supreme Court as under:

It is clear that, if there had been an averment, on behalf of the petitioners, that the rule was invalid for violating Articles 14 and 16 of the Constitution, relevant facts showing how it was discriminatory ought to have been set out. After this had been done, the respondents, including the State of Andhra Pradesh, could have been in a position to set up other facts which may have indicated why the rule was not discriminatory. Such questions cannot be decided without relevant assertions on questions of fact which may have to be investigated if controverted. It is only after facts affecting the validity of such a rule have been set out and an opportunity given to controvert them that a set of either admitted facts or established facts emerges by reference to which the validity of such a rule could be tested and a decision on the question could be given. The petitioners had only prayed for the quashing of the GO No. 929 of November 29, 1971 of the Health and Municipal Department fixing the gradation of the petitioners vis-a-vis other employees. They had not prayed for any declaration of invalidity of the ATA Rules. The question of its validity would have affected a number of persons who were not before the Court.

The invalidity of the ATA Rule, could not, for the reasons given above, be urged on the writ petition before the High Court without even an amendment of the petition, so as to give the respondents an opportunity to meet a case of alleged invalidity of the rule.

Applying the above dictum laid down by the Hon''ble Supreme Court, the contentions urged by the learned counsel for the petitioner for the first time during the arguments, cannot be considered for want of averments in the affidavit. Unless, these grounds have been raised in the writ petition, the Government cannot be expected to face all these arguments and to submit a reply. Therefore, this Court cannot consider these points for want of pleadings. So, the arguments pertaining to the above points are rejected.

In view of the foregoing discussions, I hold that clause (v) of the G.O does not offend either Article 14 or 21 of the Constitution of India.

In the result, I do not find any merit in the writ petition, and the same fails and accordingly, it is dismissed. No costs.

Before parting with the judgment, this Court would like to record its appreciation of the assistance rendered by the learned counsel Mr. M. Radhakrishnan and the learned Advocate General, Mr. G. Masilamani assisted by the Additional Government Pleader, Mr. V. Arun.