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. https://hcservices.ecourts.gov.in/hcservices/ 3.The Advisory Board for the premature 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 premature 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 https://hcservices.ecourts.gov.in/hcservices/ 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 Mr.R.Rajaram 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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 Karnataka’s 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