PYARE LAL versus STATE OF HARYANA
[2020] 6 S.C.R. 249, Supreme Court of India, 2020
Outcome: Directions issued
Segment: Facts
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PYARE LAL
v.
STATE OF HARYANA
(Criminal Appeal No. 1003 of 2017)
JULY 17, 2020
[UDAY UMESH LALIT, MOHAN M. SHANTANAGOUDAR
AND VINEET SARAN, JJ.]
Constitution of India:
Art. 161 – Remission of sentence under – On the basis of
policy framed by the executive – Relevant material not placed before
the Governor and benefit in each of the cases was conferred by the
executive itself in terms of the policy – Propriety of the remission –
Held: The decisions of the Supreme Court by larger Benches show
that relevant material must be placed before the Governor in order
to enable him to exercise the power u/Art. 161 and failure on that
count could result in quashing of the order of remission – The
Constitution Bench in Maru Ram Case had observed that Government
should make Rules for its own guidance in the exercise of the pardon
powers – In view of the observation in Maru Ram case, the norms
laid down by the policy were correct – Therefore, the matter is
required to be referred to larger Bench – To determine the question
whether in exercise of power conferred under Article 161, a policy
can be framed, whereunder certain norms or postulates are laid
down, on the satisfaction of which the benefit of remission can
thereafter be granted by the Executive without placing the facts or
material with respect to any of the cases before the Governor and
whether such exercise can override the requirements under Section
433-A of Cr. P.C. – Sentence/ Sentencing – Remission of
Sentence –
Code of Criminal Procedure, 1973 – s. 433-A.
Maru Ram v. Union of India and Others (1981) 1 SCC
107 : [1981] 1 SCR 1196; Swaran Singh v. State of
U.P. and Others (1998) 4 SCC 75 : [1998] 2 SCR 206;
Epuru Sudhakar v. Govt. of A.P. (2006) 8 SCC 161 :
[2006] 7 Suppl. SCR 81; Satpal v. State of Haryana
(2000) 5 SCC 170 : [2000] 3 SCR 858; State of
[2020] 6 S.C.R. 249
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Haryana and Others v. Jagdish (2010) 4 SCC 216 :
[2010] 3 SCR 716; Devender Pal Singh Bhullar v. State
(NCT of Delhi) (2013) 6 SCC 195 : [2013] 6 SCR 676
– referred to.
Case Law Reference
[1981] 1 SCR 1196
referred to
Para 4
[1998] 2 SCR 206
referred to
Para 5
[2006] 7 Suppl. SCR 81
referred to
Para 6
[2000] 3 SCR 858
referred to
Para 6.1
[2010] 3 SCR 716
referred to
Para 7
[2013] 6 SCR 676
referred to
Para 8
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1003 of 2017.
From the Judgment and Order dated 31.05.2013 of the High Court
of  Punjab and Haryana at Chandigarh in Criminal Appeal No. 170-DB
of 2007.
Shikhil Suri, Shiv Kumar Suri, Advs. for the Appellant.
Amit Kumar, AAG, Sanjay Kumar Visen, Adv. for the Respondent.
The Order of the Court was passed by
UDAY UMESH LALIT, J.
1. The Appellant (original Accused No.1) stands convicted under
Section 302 read with Section 34 of the Indian Penal Code and sentenced
to suffer life imprisonment and to other punishments including fine and
default sentence under certain other offences.  While granting Special
Leave to Appeal, this Court by its Order dated 04.07.2017 rejected the
prayer for bail.Another application for bail was thereafter preferred and
when the application came up for consideration, it was reported that
after having completed 8 years of actual sentence and the Appellant
being aged above 75 years, in accordance with the existing policy of the
State
Government, he was prematurely released in 2019. This Court,
therefore, called upon the State to file an affidavit indicating whether the
policy permitted premature release even before completion of actual
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sentence of 14 years in connection with an offence punishable under
Section 302 IPC.
2. The response filed on behalf of the State Government indicates
that on the occasion of the Independence Day i.e., 15th August, 2019, in
exercise of powers conferred by Article 161 of the Constitution of India,
the Governor of Haryana was pleased to grant special remission to certain
categories of prisoners. The policy decision dated 02.08.2019 issued in
that behalf was as under:-
“ORDER OF THE GOVERNOR OF HARYANA
On the occasion of Independence Day i.e. 15th August 2019,the
Governor of Haryana in exercise of the powers conferred by
Article 161 of the Constitution of India, is pleased to grant special
remission to prisoners who are undergoing sentence as a result of
their conviction by the Courts of Criminal Jurisdiction in the State
of Haryana. The special remission granted will be as under:
Category of Convicts
The convicts who have been sentenced for life and are 75 years
or above in case of male and of 65 years or above in case of
female as on 15.08.2019 and have completed eight years of actual
sentence in case of male convicts and six years of actual sentence
in case of female convicts including under trial period and excluding
parole period and whose conduct has remained satisfactory during
confinement and who have not committed any major jail offence
in the last two years be released forthwith.
1) The convicts who have been sentenced for punishment other
than
life sentence and are of 75 years and above in case of male
and 65 years and above in the case of female as on 15.08.2019
and have been completed 2/3rd actual sentence including undertrial
period and excluding parole period and whose conduct has
remained satisfactory during confinement and who have not
committed any major jail offence in the last two years be released
forthwith.
Note:- The age of above convicts should be calculated according
to Matriculation certificate or birth certificate and in absence of
both it will be calculated according to the judgment of the trial
Court and the Superintendent jail will ensure correctness of age.
PYARE LAL v. STATE OF HARYANA
[UDAY UMESH LALIT, J.]
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2) The remission will not be granted to prisoners convicted for the
following offences:
i)
Who have been sentenced to death and their sentences
have been commuted to life sentence.
ii)
Abduction and murder of a child below the age of 14
years.
iii)
Rape with murder.
iv)
Dacoity or Robbery
v)
Where the Courts have issued any specific order regarding
confinement.
vi)
Convicts under Terrorist and Disruptive Activities
(Prevention) Act, 1987, Official Secrets Act, 1923,
Foreigners Act, 1948, Passport Act, 1967, Sections 2 & 3
of the Criminal Law Amendment Act, 1961 and Sections
121 to 130 of the Indian Penal Code, 1860.
vii) The sentence of imprisonment imposed in default of
payment of fine shall not be treated as substantive for the
purpose of grant of this remission.
viii) Under NDPS Act in view of Section 32A of the NDPS
Act, 1985
ix)
Detenues of any class
x)
Pakistan nationals
xi)
The persons imprisoned for failing to give security for
keeping peace for their good behavior under Sections 107/
109/110 of the Criminal Procedure Code, 1973.
xii) Cases of prisoners convicted for counterfeiting currency
notes cases under section 489 (A to E) of the Indian Penal
Code.
xiii) Convicted and sentenced under Section 138 of the
Negotiable Instruments Act, 1881.
3. This remission will not be granted to the convicts who are on
bail on the day of granting this remission. However, they may be
released if they fulfill the above
conditions as on 15th August
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2019, after they surrender in the jails in compliance with orders of
Hon’ble Courts.”
3. The matter was thereafter taken up for hearing. We heard Mr.
Shikhil Suri, learned counsel appearing for the Appellant on behalf of the
Supreme Court Legal Services Committee and Mr. Amit Kumar, learned
Additional Advocate General for the State.
4. In Maru Ram  vs.  Union of India and others1, the Constitution
Bench of this Court considered the validity of Section 433-A of the Code2
(inserted by Act 45 of 1978 w.e.f. 18.12.1978).The conclusions in the
majority judgment authored by V.R. Krishna Iyer, J., were:-
“72. We conclude by formulating our findings:
(1) We repulse all the thrusts on the vires of Section 433-A. May
be, penologically the prolonged term prescribed by the section is
supererogative. If we had our druthers we would have negatived
the need for a fourteen-year gestation for reformation. But ours
is to construe, not construct, to decode, not to make a code.
(2) We affirm the current supremacy of Section 433-A over the
Remission Rules and short-sentencing statutes made by the various
States.
(3) We uphold all remissions and short-sentencing passed under
Articles 72 and 161 of the Constitution but release will follow, in
life sentence cases, only on Government making in order en masse
or individually, in that behalf.
(4) We hold that Section 432 and Section 433 are not a
manifestation of Articles 72 and 161 of the Constitution but a
separate, though
similar power, and Section 433-A, by nullifying
wholly or partially these prior provisions does not violate or detract
from the full operation of the constitutional power to pardon,
commute and the like.
(5) We negate the plea that Section 433-A contravenes Article
20(1) of the Constitution.
(6) We follow Godse case3 to hold that imprisonment for life lasts
until the last breath, and whatever the length of remissions earned,
1 (1981) 1 SCC 107
2 Code of Criminal Procedure, 1973
3 (1961) 3 SCR 440  (Gopal Vinayak Godse  vs.  State of Maharashtra and ors.)
PYARE LAL v. STATE OF HARYANA
[UDAY UMESH LALIT, J.]
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the prisoner can claim release only if the remaining sentence is
remitted by Government.
(7) We declare that Section 433-A, in both its limbs (i.e. both
types of life imprisonment specified in it), is prospective in effect.
To put the position beyond doubt, we direct that the mandatory
minimum of 14 years actual imprisonment will not operate against
those whose cases were decided by the trial court before
December 18, 1978 when Section 433-A came into force. All
“Lifers” whose conviction by the court of first instance was entered
prior to that date are entitled to consideration by Government for
release on the strength of earned remissions although a release
can take place only if Government makes an order to that effect.
To this extent the battle of the tenses is won by the prisoners. It
follows, by the same logic, that short-sentencing legislations, if
any, will entitle a prisoner to claim release thereunder if his
conviction by the court of first instance was before Section 433-
A was brought into effect.
(8) The power under Articles 72 and 161 of the Constitution can
be exercised by the Central and State Governments, not by the
President or Governor on their own. The advice of the appropriate
Government binds the Head of the State. No separate order for
each individual case is necessary but any general order made
must be clear enough to identify the group of cases and indicate
the application of mind to the whole
group.
(9) Considerations for exercise of power under Articles 72/161
may be myriad and their occasions protean, and are left to the
appropriate Government, but no consideration nor occasion can
be wholly irrelevant, irrational, discriminatory or mala fide. Only
in these rare cases will the court examine the exercise.
(10) Although the remission rules or short-sentencing provisions
proprio vigore may not apply as against Section 433-A, they will
override Section 433-A if the Government, Central or State, guides
itself by the selfsame rules or schemes in the exercise of its
constitutional power. We regard it as fair that until fresh rules are
made in keeping with experience gathered, current social
conditions and accepted penological thinking — a desirable step,
in our view — the present remission and release schemes may
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usefully be taken as guidelines under Articles 72/161 and orders
for release passed. We cannot fault the Government, if in some
intractably savage delinquents, Section 433-A is itself treated as a
guideline for exercise of Articles 72/161. These observations of
ours are recommendatory to avoid a hiatus, but it is for
Government, Central or State, to decide whether and why the
current Remission Rules should not survive until replaced by a
more wholesome scheme.
(11) The U.P. Prisoners’ Release on Probation Act, 1938, enabling
limited enlargement under licence will be effective as legislatively
sanctioned imprisonment of a loose and liberal type and such
licensed enlargement will be reckoned for the purpose of the 14-
year duration. Similar other statutes and rules will enjoy similar
efficacy.
(12) In our view, penal humanitarianism and rehabilitative
desideratum warrant liberal paroles, subject to security safeguards,
and other humanizing strategies for inmates so that the dignity
and worth of the human person are not desecrated by making
mass jails anthropoid zoos. Human rights awareness must infuse
institutional reform and search for alternatives.
(13) We have declared the law all right, but law-in-action fulfils
itself not by declaration alone and needs the wings of
communication to the target community. So, the further direction
goes from this Court that the last decretal part is translated and
kept prominently in each ward and the whole judgment, in
the
language of the State, made available to the inmates in the jail
library.
(14) Section 433-A does not forbid parole or other release within
the 14-year span. So to interpret the section as to intensify inner
tension and intermissions of freedom is to do violence to language
and liberty.”
(Emphasis added)
4.1. The difference between the powers of commutation and
remission of sentences exercisable under the provisions of the Code or
other statutes on one hand and the constitutional powers under Articles
72 and 161 of the Constitution on the other, was dealt with in the majority
judgment as under:-
PYARE LAL v. STATE OF HARYANA
[UDAY UMESH LALIT, J.]
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“59. It is apparent that superficially viewed, the two powers, one
constitutional and the other statutory, are coextensive. But two
things may be similar but not the same. That is precisely the
difference. We cannot agree that the power which is the creature
of the Code can be equated with a high prerogative vested by the
Constitution in the highest functionaries of the Union and the States.
The source is different, the substance is different, the strength is
different, although the stream may be flowing along the same
bed. We see the two powers as far from being identical, and,
obviously, the constitutional power is “untouchable” and
“unapproachable” and cannot suffer the vicissitudes of simple
legislative processes. Therefore, Section 433-A cannot be
invalidated as indirectly violative of Articles 72 and 161. What the
Code gives, it can take, and so, an embargo on Sections 432 and
433(a) is within the legislative power of Parliament.
60. Even so, we must remember the constitutional status of
Articles 72 and 161 and it is common ground that Section 433-A
does not and cannot affect even a wee bit the pardon power of
the Governor or the President. The necessary sequel to this logic
is that notwithstanding Section 433-A the President and the
Governor continue to exercise the power of commutation and
release under the aforesaid articles.
61. Are we back to square one? Has Parliament indulged in
legislative futility with
a formal victory but a real defeat? The
answer is “yes” and “no”. Why “yes”? Because the President is
symbolic, the Central Government is the reality even as the
Governor is the formal head and sole repository of the executive
power but is incapable of acting except on, and according to, the
advice of his Council of Ministers. The upshot is that the State
Government, whether the Governor likes it or not, can advice and
act under Article 161, the Governor being bound by that advice.
The action of commutation and release can thus be pursuant to a
governmental decision and the order may issue even without the
Governor’s approval although, under the Rules of Business and
as a matter of constitutional courtesy, it is obligatory that the
signature of the Governor should authorise the pardon,
commutation or release. The position is substantially the same
regarding the President. It is not open either to the President or
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the Governor to take independent decision or direct release or
refuse release of anyone of their own choice. It is fundamental to
the Westminster system that the Cabinet rules and the Queen
reigns being too deeply rooted as foundational to our system no
serious encounter was met from the learned Solicitor-General
whose sure grasp of fundamentals did not permit him to controvert
the proposition, that the President and the Governor, be they ever
so high in textual terminology, are but functional euphemisms
promptly acting on and only on the advice of the Council of
Ministers have in a narrow area of power. The subject is now
beyond controversy, this Court having authoritatively laid down
the law in Shamsher Singh case4. So, we agree, even without
reference to Article 367(1) and Sections 3(8)(b) and 3(60)(b) of
the General Clauses Act, 1897, that, in the matter of exercise of
the powers under Articles 72 and 161, the two highest dignitaries
in our constitutional scheme act and must act not on their own
judgment but in accordance with the aid and advice of the ministers.
Article 74, after the 42nd Amendment silences speculation and
obligates compliance. The Governor vis-à-vis his Cabinet is no
higher than the President save in a narrow area which does not
include Article 161. The constitutional conclusion is that the
Governor is but a shorthand expression for the State Government
and the President is an abbreviation for the Central Government.
(Emphasis
added)
4.2. The majority judgment did not approve of the exercise of
power under Article 161 of the Constitution by the Governor while issuing
Order dated 18.07.1978 but emphasized the propriety of making rules
by the Government “for its own guidance”.
“62. 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
4 (1974) 2 SCC 831
PYARE LAL v. STATE OF HARYANA
[UDAY UMESH LALIT, J.]
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play of power. We proceed on the basis that these axioms are
valid in our constitutional order.
…    …    …
65. Pardon, using this expression in the amplest connotation, ordains
fair exercise, as we have indicated above. Political vendetta or
party favouritism cannot but be interlopers in this area. The order
which is the product of extraneous or mala fide factors will vitiate
the exercise. While constitutional power is beyond challenge, its
actual exercise may still be vulnerable. Likewise, capricious criteria
will void the exercise. For example, if the Chief Minister of a
State releases everyone in the prisons in his State on his birthday
or because a son has been born to him, it will be an outrage on the
Constitution to let such madness survive. We make these
observations because it has been brought to our notice that a
certain Home Minister’s visit to a Central Jail was considered so
auspicious an omen that all the prisoners in the jail were given
substantial remissions solely for this reason. Strangely enough,
this propitious circumstance was discovered an year later and
remission order was issued long after the Minister graced the
penitentiary. The actual order passed on July 18, 1978 by the
Haryana Government reads thus:5
“In exercise of the powers conferred under Article 161,
the Constitution of India, the Governor of Haryana grants
special remissions on the same scale and terms as mentioned
in Government of
India, Ministry of Home Affairs Letter No.
U. 13034/59/77 dated June 10, 1977 to prisoners who
happened to be confined in Central Jail, Tihar, New Delhi on
May 29, 1977, at the time of the visit of Home Minister,
Government of India, to said Jail and who have been convicted
by the civil courts of Criminal Jurisdiction in Haryana State.
A. Banerjee
Secretary to Government of Haryana Jails Department
Dated: Chandigarh,
July 18, 1978.”
5 No.41/8/78/-JJ(5) dated: Chandigarh, July 28, 1978
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Push this logic a little further and the absurdity will be obvious.
No constitutional power can be vulgarised by personal vanity of
men in authority. Likewise, if an opposition leader is sentenced,
but the circumstances cry for remission such as that he is suffering
from cancer or that his wife is terminally ill or that he has
completely reformed himself, the power of remission under Articles
72/161 may ordinarily be exercised and a refusal may be wrong-
headed. If, on the other hand, a brutal murderer, bloodthirsty in his
massacre, has been sentenced by a court with strong observations
about his bestiality, it may be arrogant and irrelevant abuse of
power to remit his entire life sentence the very next day after the
conviction merely because he has joined the party in power or is
a close relation of a political high-up. 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 the 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.”
(Emphasis added)
4.3. The majority Judgment cautioned that mere length of
imprisonment may not by itself regenerate goodness in a convict and
stated that the rules of remission may be effective guidelines of a
recommendatory nature:-
“67. All these go to prove that the length of imprisonment is not
regenerative of the goodness within and may be proof of the
reverse — a calamity which may be averted by exercise of power
under Article 161, especially when the circumstances show good
behaviour, industrious conduct, social responsibility and humane
responses which are usually reflected in the marks accumulated
in the shape of remission. In short, the rules of remission may be
effective guidelines of a recommendatory nature, helpful to
Government to release the prisoner by remitting the remaining
term.”
(Emphasis added)
PYARE LAL v. STATE OF HARYANA
[UDAY UMESH LALIT, J.]
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4.4. It was also observed:-
“69. The rule of law, under our constitutional order, transforms all
public power into responsible, responsive, regulated exercise
informed by high purposes and geared to people’s welfare. But
the wisdom and experience of the past have found expression in
remission rules and short-sentencing laws. No new discovery by
Parliament in 1978 about the futility or folly of these special and
local experiences, spread over several decades, is discernible.
No High-power committee report, no expert body’s
recommendations, no escalation in recidivism attributable to
remissions and releases, have been brought to our notice.
Impressionistic reaction to some cases of premature release of
murderers, without even a follow-up study of the later life of these
quondam convicts, has been made. We find the rise of
enlightenment in penological alternatives to closed prisons as the
current trend and failure of imprisonment as the universal lament.
We, heart-warmingly, observe experiments in open jails, filled by
lifers, liberal paroles and probations, generosity of juvenile justice
and licensed release or freedom under leash — a la The U.P.
Prisoners’ Release on Probation Act, 1938. We cannot view
without gloom the reversion to the sadistic superstition that the
longer a life convict is kept in a cage the surer will be his
redemption. It is our considered view that, beyond an optimum
point of, say, eight years —
we mean no fixed formula — prison
detention benumbs and makes nervous wreck or unmitigated brute
of a prisoner. If animal farms are not reformatories, the remission
rules and short-sentencing schemes are a humanising wheel of
compassion and reduction of psychic tension. We have no
hesitation to reject the notion that Articles 72/161 should remain
uncanalised. We have to direct the provisional acceptance of the
remission and short-sentencing schemes as good guidelines for
exercise of pardon power — a jurisdiction meant to be used as
often and as systematically as possible and not to be abused, much
as the temptation so to do may press upon the pen of power.
70. The learned Solicitor-General is right that these Rules are
plainly made under the Prisons Act and not under the constitutional
power. The former fail under the pressure of Section 433-A. But
that, by no means, precludes the States from adopting as working
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rules the same remission schemes which seem to us to be fairly
reasonable. After all, the Government cannot meticulously study
each prisoner and the present praxis of marks, until a more
advanced and expertly advised scheme is evolved, may work.
Section 433-A cannot forbid this method because it is immunised
by Article 161. We strongly suggest that, without break, the same
Rules and schemes of remission be continued as a transmigration
of soul into Article 161, as it were, and benefits extended to all
who fall within their benign orbit — save, of course, in special
cases which may require other relevant considerations. The wide
power of executive clemency cannot be bound down even by
self-created rules.”
5. In Swaran Singh vs. State of U.P. and others6, the order
passed by the Governor under Article 161 of the Constitution granting
remission to the person convicted of an offence of murder, even before
the convict had completed two years’ of actual sentence, was set aside
by a Bench of three Judges of this Court. It was observed:-
“8. On our direction, the Standing Counsel for the State of U.P.
has produced the files concerning the grant of remission of
sentence to Doodh Nath. We have noted therefrom that the
Governor was not told of certain vital facts concerning the prisoner
such as his involvement in five other criminal cases of serious
offences, the rejection of his earlier clemency petition which was
filed on the same grounds, the report of the jail
authorities that his
conduct inside the jail was far from satisfactory, and out of two
years and five months he was supposed to have been in jail, he
was in fact on parole during the substantial part thereof.
9. Learned counsel for the third respondent Doodh Nath resisted
this appeal on the main plank that any order issued by the President
of India under Article 72 of the Constitution of India or by the
Governor of a State under Article 161 thereof is non-justiciable
and hence the Court cannot look into the reasons which persuaded
the constitutional functionary to grant reprieve or remission to a
prisoner.
10. A Constitution Bench of this Court has considered the scope
of judicial review of exercise of powers under Articles 72 and
6 (1998) 4 SCC 75
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[UDAY UMESH LALIT, J.]
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161 of the Constitution of India in Kehar Singh v. Union of India7.
The Bench after observing that the Constitution of India is a
constitutive document which is fundamental to the governance of
the country under which people of India have provided a
constitutional polity consisting of certain primary organs, institutions
and functionaries to exercise the powers provided in the
Constitution, proceeded to add thus: (SCC p. 210, para 7)
“All power belongs to the people and it is entrusted by them to
specified institutions and functionaries with the intention of
working out, maintaining and operating a constitutional order.”
The Constitution Bench laid down that judicial review of the
Presidential order cannot be exercised on the merits except within
the strict limitations defined in Maru Ram v. Union of India1.
The limitations of judicial review over exercise of powers under
Articles 72 and 161 of the Constitution have been delineated in
the said decision by the Constitution Bench. It has been observed
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 valid play of power”.
The Bench stressed the point that the power being of the greatest
moment, cannot be a law unto itself but it must be informed by the
finer canons of constitutionalism.
11. It was therefore, suggested by the Bench to make
rules for its
own guidance in the exercise of the pardon power keeping a large
residuary power to meet special situations or sudden developments.
12. In view of the aforesaid settled legal position, we cannot accept
the rigid contention of the learned counsel for the third respondent
that this Court has no power to touch the order passed by the
Governor under Article 161 of the Constitution. If such power
was exercised arbitrarily, mala fide or in absolute disregard of the
finer canons of the constitutionalism, the by-product order cannot
get the approval of law and in such cases, the judicial hand must
be stretched to it.
13. In the present case, when the Governor was not posted with
material facts such as those indicated above, the Governor was
apparently deprived of the opportunity to exercise the powers in a
7 (1989) 1 SCC 204
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fair and just manner. Conversely, the order now impugned fringes
on arbitrariness. What the Governor would have ordered if he
were apprised of the above facts and materials is not for us to
consider now because the Court cannot then go into the merits of
the grounds which persuaded the Governor in taking a decision in
exercise of the said power. Thus, when the order of the Governor
impugned in these proceedings is subject to judicial review within
the strict parameters laid down in Maru Ram case1 and reiterated
in Kehar Singh case7 we feel that the Governor shall reconsider
the petition of Doodh Nath in the light of those materials which he
had no occasion to know earlier.”
(Emphasis added)
6. In Epuru Sudhakar vs. Govt. of A.P.8, the Division Bench of
this Court was called upon to consider the challenge at the instance of
the victim of the crime to the order passed by the Governor of the State
under Article 161 of the Constitution granting remission in respect of the
unexpired sentence of the accused.
6.1. In the leading Judgment, Pasayat, J. referred to the decisions
of this Court in Swaran Singh6 and Satpal vs. State of Haryana9 as
under:-
“29. The factual scenario in Swaran Singh case6 needs to be
noted. One Doodh Nath was found guilty of murdering one Joginder
Singh and was sentenced to imprisonment for life. His appeals to
the High Court and special leave petition to this Court were
unsuccessful. However, within a period of less than 2 years the
Governor of Uttar Pradesh granted remission of the remaining
long period of his life sentence. This Court quashed the said order
of the Governor on the ground that when the Governor was not
posted with material facts, the Governor was apparently deprived
of the opportunity to exercise the powers in a fair and just manner.
Conversely, the impugned order, it was observed “fringes on
arbitrariness”.
30. The Court held that if the pardon power “was exercised
arbitrarily, mala fide or in absolute disregard of the finer canons
of the constitutionalism, the by-product order cannot get the
8 (2006) 8 SCC 161
9 (2000) 5 SCC 170
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approval of law and in such cases, the judicial hand must be
stretched to it” (Swaran Singh case6, SCC p. 79, para 12). The
Court further observed that when the order of the Governor
impugned in these proceedings is subject to judicial review within
the strict parameters laid down in Maru Ram case1 and reiterated
in Kehar Singh case7 “we feel that the Governor shall reconsider
the petition of Doodh Nath in the light of those materials which he
had no occasion to know earlier” (SCC p. 79, para 13), and left it
open to the Governor of Uttar Pradesh to pass a fresh order in
the light of the observations made by this Court.
31. In Satpal v. State of Haryana9 this Court observed that the
power of granting pardon under Article 161 is very wide and does
not contain any limitation as to the time at which and the occasion
on which and the circumstances in which the said powers could
be exercised.
32. Thereafter the Court held as follows: (SCC p. 174, para 4)
“The said power being a constitutional power conferred upon
the Governor by the Constitution is amenable to judicial review
on certain limited grounds. The Court, therefore, would be
justified in interfering with an order passed by the Governor in
exercise of power under Article 161 of the Constitution if the
Governor is found to have exercised the power himself without
being advised by the Government or if the Governor
transgresses the jurisdiction in exercising the same
or it is
established that the Governor has passed the order without
application of mind or the order in question is a mala fide one
or the Governor has passed the order on some extraneous
consideration.”
The principles of judicial review on the pardon power have
been restated in Bikas Chatterjee v. Union of lndia10.”
6.1.1. It was concluded by Pasayat, J.:-
“34. The position, therefore, is undeniable that judicial review
of the order of the President or the Governor under Article 72
or Article 161, as the case may be, is available and their orders
can be impugned on the following grounds:
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(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly
irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness.
 (Emphasis added)
…
…
….
59. When the principles of law as noted above are considered
in the factual background it is clear that the irrelevant and
extraneous materials entered into the decision-making process,
thereby vitiating it.
60. The order granting remission which is impugned in the
petitions is clearly unsustainable and is set aside. However, it
is open to Respondent 1 to treat the petition as a pending one
for the purpose of reconsideration. It shall be open to the
Governor to take note of materials placed before him by the
functionaries of the State, and also to make such enquiries as
considered necessary and relevant for the purpose of
ascertaining the relevant factors otherwise. The writ petitions
are allowed to the extent indicated above. No costs.”
6.2. Kapadia, J. (as the learned Chief Justice then was), in his
concurring opinion stated:-
“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
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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 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.
67. The power under Article 72 as also under Article 161 of the
Constitution is of the widest amplitude and envisages myriad kinds
and categories of cases with facts and situations varying from
case to case. The exercise of power depends upon the facts and
circumstances of each case and the necessity or justification for
exercise of that power has to be judged from case to case. It is
important to bear in mind that every aspect of the exercise of the
power under Article 72 as also under Article 161 does not fall in
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the judicial domain. In certain cases, a particular aspect may not
be justiciable. However, even in such cases there has to exist
requisite material on the basis of which the power is exercised
under Article 72 or under Article 161 of the Constitution, as the
case may be. In the circumstances, one cannot draw the guidelines
for regulating the exercise of the power.”
(Emphasis added)
7. In State of Haryana and others vs. Jagdish11 a Bench of
three Judges of this Court observed:-
“46. At the time of considering the case of premature release of
a life convict, the authorities may require to consider his case
mainly taking into consideration whether the offence was an
individual act of crime without affecting the society at large;
whether there was any chance of future recurrence of committing
a crime; whether the convict had lost his potentiality in committing
the crime; whether there was any fruitful purpose of confining
the convict any more; the socio-economic condition of the convict’s
family and other similar circumstances.”
(Emphasis added)
8. In Devender Pal Singh Bhullar v. State (NCT of Delhi)12 the
Division Bench of this Court concluded:-
“47. The propositions which can be culled out from the ratio of
the abovenoted judgments are:
47.1. The power vested in the President under Article 72 and the
Governor under Article 161 of the Constitution is a manifestation
of prerogative of the State. It is neither a matter of grace nor a
matter of privilege, but
is an important constitutional responsibility
to be discharged by the highest executive keeping in view the
considerations of larger public interest and welfare of the people.
47.2. While exercising power under Article 72, the President is
required to act on the aid and advice of the Council of Ministers.
In tendering its advice to the President, the Central Government
is duty-bound to objectively place the case of the convict with a
11 (2010) 4 SCC 216
12 (2013) 6 SCC 195
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clear indication about the nature and magnitude of the crime
committed by him, its impact on the society and all incriminating
and extenuating circumstances. The same is true about the State
Government, which is required to give advice to the Governor to
enable him to exercise power under Article 161 of the Constitution.
On receipt of the advice of the Government, the President or the
Governor, as the case may be, has to take a final decision in the
matter. Although, he/she cannot overturn the final verdict of the
Court, but in appropriate case, the President or the Governor, as
the case may be, can after scanning the record of the case, form
his/her independent opinion whether a case is made out for grant
of pardon, reprieve, etc. In any case, the President or the Governor,
as the case may be, has to take cognizance of the relevant facts
and then decide whether a case is made out for exercise of power
under Article 72 or 161 of the Constitution.
(Emphasis added)
…    …    …
68. While examining challenge to the decision taken by the
President under Article 72 or the Governor under Article 161 of
the Constitution, as the case may be, the Court’s power of judicial
review of such decision is very limited. The Court can neither sit
in appeal nor exercise the power of review, but can interfere if it
is found that the decision has been taken without application of
mind to the relevant factors or the same is founded on the
extraneous or irrelevant considerations or is vitiated due to mala
fides or patent arbitrariness (Maru Ram v. Union of India1, Kehar
Singh v. Union of India7, Swaran Singh v. State of U.P.6, Satpal
v. State of Haryana9, Bikas Chatterjee v. Union of India10,
Epuru Sudhakar v. Govt. of A.P.8 and Narayan Dutt v. State
of Punjab13).
9. It is accepted by the learned Additional Advocate General for
the State that every convict who came within the stipulations laid down
by the Policy, that is to say (i) if the age of the convict was above 75
years in case of a male and above 65 years in case of a female, (ii) and,
if the convict had completed 8 years or 6 years of actual sentence
respectively, (iii) and, if the conduct of the convict in jail was
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satisfactory,in that the convict had not committed any major jail offence
in the last two years, (iv) and the convict did not come within any of the
exceptions laid down in para (2) of the Policy;the convict was released
forthwith.
It is also accepted that no individual facts or material pertaining to
any of the cases were placed before the Governor and that the benefit
in each of the cases was conferred by the Executive itself in terms of
the Policy.  The Governor, thus, did not have the occasion to look into the
issues such as severity of the crime or the manner in which the crime
was committed or the impact of the crime on the Society or how the
matter was seen and considered by the concerned courts while holding
or upholding that the concerned convicts were found guilty of the offences
in question.
10. The consistent line of cases decided by this Court has laid
down that the principles of Section 433-A of the Code do not and cannot
apply to the exercise of constitutional power either under Article 72 or
under Article 161 of the Constitution. It has always been accepted that
no limitation can be read into the exercise of such constitutional power
and that the sovereign power would not be bound by restrictions emanating
from Section 433-A of the Code.
11. However, the question that arises is whether in exercise of
power under Article 161 of the Constitution, a policy could be laid down
setting out certain norms or postulates, on the satisfaction of
which the
benefit could thereafter be conferred upon or granted to the convicts by
the executive without even placing the individual facts and material
pertaining to the case of the convict, before the Governor. It is true that
in conclusion ‘(8)’ in Maru Ram1 there are observations that no separate
order for each individual case would be necessary but a general order
must be clear enough to identify the group of cases and indicate the
application of mind to the whole group. The basis for such conclusion is
in the discussion in the paragraphs quoted hereinabove but at the same
time the order issued on 18.07.1978 in exercise of powers conferred
under Article 161 of the Constitution which in an omnibus way had granted
benefit to the convicts, did not meet with the approval of the Court.
Further, the observations in para 69 in Maru Ram1 indicate that the
remission and short-sentencing schemes then in existence could be taken
as good guidelines for exercise of pardon power.  To similar effect are
the observations in para 70.
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12. The decisions of this Court rendered since Maru Ram1 and
some of them being decisions of the Benches of three Judges of this
Court, do show that the relevant material must be placed before the
Governor in order to enable him to exercise the power under Article 161
of the Constitution and failure on that count could result in quashing of
the concerned orders of remission issued under Article 161 of the
Constitution.  For example, the observations in para 13 in Swaran Singh6,
and thosein paragraphs 34 and 67 in Epuru Sudhakar8 emphasize that
the power must be exercised depending upon the facts and circumstances
of the concerned case and based on facts and materials of the case.
The observations have also gone to the extent of stating that the entirety
of the matter must be before the Governor for exercise of power under
Article 161 of the Constitution and that all the relevant aspects including
seriousness of the crime and the manner in which the crime was
committed must also be part of the consideration. That exercise of power
alone, where all the relevant facts and circumstances of the case were
considered, is to be accepted to be correct and valid.
13. The modalities adopted in the present matter, however,
unmistakably, show that the individual facts and circumstances of the
case were not even placed before the Governor.  The basic aspects viz.,
the manner in which the crime was committed, the impact of the crime
on the Society and the seriousness of the crime got completely suppressed
and relegated in the background under the norms laid down in the policy
and it was then left to the Executive to see whether any individual case
came within the parameters laid down by the policy. The basic facts and
circumstances of the case were not even looked into. The correctness
and propriety of such exercise is the matter in issue.
14. Considering the fact that some of the observations in Maru
Ram1 including the last sentence in conclusion ‘(8)’ were relied upon by
Mr. Shikhil Suri, learned Advocate to submit that the exercise of laying
down the norms by a policy was correct and that theappellant was rightly
granted remission; and as the decision in Maru Ram1 was rendered by
the Constitution Bench of this Court, in our considered view, the present
matter is required to be placed before a larger Bench.
15. For facility, we may frame the questions for consideration as
under:-
Whether in exercise of power conferred under Article 161 of the
Constitution a policy can be framed, whereunder certain norms or
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postulates are laid down, on the satisfaction of which the benefit of
remission can thereafter be granted by the Executive without placing
the facts or material with respect to any of the cases before the Governor
and whether such exercise can override the requirements under Section
433-A of the Code.
16. We, therefore, direct the Registry to place the matter before
the Hon’ble the Chief Justice for constituting a Bench of appropriate
strength to consider the issues raised in the present matter.
17. Before we part, we must record our appreciation for the
assistance rendered by Mr. Shikhil Suri, learned Advocate who appeared
on behalf of the Supreme Court Legal Services Committee.
Kalpana K. Tripathy
Matter referred to larger Bench.
PYARE LAL v. STATE OF HARYANA
[UDAY UMESH LALIT, J.]