In the High Court of Judicature at Madras Dated : 5..2..2009 C O R A M THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN H.C.P. Nos.985, 1283 and 1303 of 2008 1. Durairaj .. Petitioners in 2. Manickam H.C.P.No.985/2008 1. Balan @ Balendran 2. Nanda @ Nandakumar .. Petitioners in 3. Sathish @ Sathish Kumar H.C.P.No.1283/2008 1. Premananda @ Premkumar @ Ravi .. Petitioners in 2. Kamalananda H.C.P.No.1303/2008 versus 1. State, rep. by Secretary to Government, Home Department, Fort St. George, Chennai-9. 2. Additional Director General of Prisons, Office of the Additional Director General,.. Respondents in Egmore, Chennai-8. H.C.P.No.985/2008 1. State of Tamil Nadu, rep. by its Secretary, Home Department, Fort St. George, Chennai-9. 2. Additional Director General of Prisons, Office of Additional Director General, Egmore, Chennai-8. 3. The Superintendent, .. Respondents in Central Prison, Tiruchirapalli-20. H.C.P.No.1283/2008 1. State of Tamil Nadu, rep. by its Secretary, Home Department, Fort St. George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ 2. Additional Director General of Prisons, Office of Addl. Director General, Egmore, Chennai-8. 3. The Superintendent, Central Prison, Tiruchirapalli-20. 4. The Superintendent, .. Respondents in Central Prison, Cuddalore-4. H.C.P.No.1303/2008 - - - - - PRAYER : H.C.P. No.985 of 2008 filed under Article 226 of the Constitution of India seeking to issue a writ of habeas corpus directing respondents 1 and 2 therein to produce the detenu by name Durairaj, S/o. Ponnusamy and Manickam, S/o. Ramasamy, who are now confined in Central Prison, Tiruchirapalli as life convicts concerned in S.C. No.197/84 on the file of the I Additional Sessions Judge, Tiruchirapalli, before this Court and release them from the Central Prison, Tiruchirapalli by passing an order of premature release and set them at liberty. H.C.P. No.1283 of 2008 filed under Article 226 of the Constitution of India seeking to issue a writ of habeas corpus directing the respondents therein to cause the production of the detenu namely Balan @ Balendran, S/o. Shanmugam, Nanda @ Nandakumar, S/o. Somasundaram and Sathish @ Sathish Kumar, S/o. Sabharathianm, who are now confined in Central Prison, Tiruchirapalli before this Court and set them at liberty. H.C.P. No.1303 of 2008 filed under Article 226 of the Constitution of India seeking to issue a writ of habeas corpus directing the respondents therein to cause the production of the detenu namely Premananda @ Premkumar @ Ravi, S/o. Somasundaram and Kamalananda, S/o. Rasanayagam, who are now confined in Central Prison, Cuddalore and Tiruchirapalli respectively before this Court and set them at liberty. - - - - - For Petitioners : Mr. S. Shunmugavelayutham Senior Counsel for in all the HCPs Mr. T. Vijaya Raghavan For Respondents : Mr. V.R. Balasubramaniam, in all the HCPs Addl. Public Prosecutor. - - - - - https://hcservices.ecourts.gov.in/hcservices/ O R D E R 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. 2. 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 under Section 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. 3. 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 Special Leave Petition and the Review Petition was also dismissed. The detenus are now serving sentence for the last 13 years. 4. 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. https://hcservices.ecourts.gov.in/hcservices/ The period of sentence already undergone by all the accused is directed to bet set off under Section 428, Cr. P.C. against the sentence now imposed." 5. 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. 6. 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. 7. Learned senior counsel relied on the following decisions. In Sunil Batra vs. Delhi Administration, A.I.R. 1980 S.C. 1579, 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. ... 30. 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. https://hcservices.ecourts.gov.in/hcservices/ ... "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. 8. In G.V. Godse vs. State of Maharashtra, A.I.R. 1961 S.C. 600, 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. ... 9. 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 https://hcservices.ecourts.gov.in/hcservices/ jurisdiction in a reasonable manner." In Mohd. Munna vs. 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 vs. Government of Andhra Pradesh, (2006) 8 S.C.C. 161, it was held thus : "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 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 https://hcservices.ecourts.gov.in/hcservices/ 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." 9. In Haja Mohideen vs. 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 vs. P. Shanmugam, 1995 (1) L.W. (Crl.) 80, this court held as follows : "16. 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 vs. 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. https://hcservices.ecourts.gov.in/hcservices/ (ii) The right of revision to the High Court under Section 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 vs. Government of Karnataka, (2008) 2 S.C.C. (Cri.) 1, the Supreme Court held as follows : "10. 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 under Section 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. Government of Karnataka, (2008) 3 S.C.C. 753. 10. In State of Haryana vs. Mahender Singh, 2007 (12) SCALE 669, 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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." 11. In Pusparaj vs. State of Tamil Nadu, 2007 Crl L.J. 4426, the petitioner who had served 13½ 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 : "15. 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 Art.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 Arts.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 https://hcservices.ecourts.gov.in/hcservices/ 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 : "20. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 12. In Mohan Singh vs. State of Madhya Pradesh, 1981 Cri. L.J. 147, it was held as follows : "6. The learned Deputy Advocate-General submitted that no prisoner