PYARE LAL versus STATE OF HARYANA on 17 July 2020

1. The Appellant (original Accused No.1) stands convicted underSection 302 read with Section 34 of the Indian Penal Code and sentencedFto suffer life imprisonment and to other punishments including fine anddefault sentence under certain other offences. While granting SpecialLeave to Appeal, this Court by its Order dated 04.07.2017 rejected theprayer for bail.Another application for bail was thereafter preferred andwhen the application came up for consideration, it was reported thatGafter having completed 8 years of actual sentence and the Appellantbeing aged above 75 years, in accordance with the existing policy of theState Government, he was prematurely released in 2019. This Court,therefore, called upon the State to file an affidavit indicating whether thepolicy permitted premature release even before completion of actual H

sentence of 14 years in connection with an offence punishable underSection 302 IPC.

2. The response filed on behalf of the State Government indicatesthat on the occasion of the Independence Day i.e., 15[th] August, 2019, inexercise of powers conferred by Article 161 of the Constitution of India,the Governor of Haryana was pleased to grant special remission to certaincategories of prisoners. The policy decision dated 02.08.2019 issued inthat behalf was as under:- “ORDER OF THE GOVERNOR OF HARYANA

On the occasion of Independence Day i.e. 15th August 2019,theGovernor of Haryana in exercise of the powers conferred byArticle 161 of the Constitution of India, is pleased to grant specialremission to prisoners who are undergoing sentence as a result oftheir conviction by the Courts of Criminal Jurisdiction in the Stateof Haryana. The special remission granted will be as under:

Category of Convicts

The convicts who have been sentenced for life and are 75 yearsor above in case of male and of 65 years or above in case offemale as on 15.08.2019 and have completed eight years of actualsentence in case of male convicts and six years of actual sentencein case of female convicts including under trial period and excludingparole period and whose conduct has remained satisfactory duringconfinement and who have not committed any major jail offencein the last two years be released forthwith.

1) The convicts who have been sentenced for punishment otherthan life sentence and are of 75 years and above in case of maleand 65 years and above in the case of female as on 15.08.2019and have been completed 2/3rd actual sentence including undertrialperiod and excluding parole period and whose conduct hasremained satisfactory during confinement and who have notcommitted any major jail offence in the last two years be releasedforthwith.

Note:- The age of above convicts should be calculated accordingto Matriculation certificate or birth certificate and in absence ofboth it will be calculated according to the judgment of the trialCourt and the Superintendent jail will ensure correctness of age.

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[2020] 6 S.C.R.

A2) The remission will not be granted to prisoners convicted for thefollowing offences:

i)Who have been sentenced to death and their sentenceshave been commuted to life sentence.

ii)Abduction and murder of a child below the age of 14Byears.

iii)Rape with murder.

iv)Dacoity or Robbery

v)Where the Courts have issued any specific order regardingCconfinement.

vi)Convicts under Terrorist and Disruptive Activities(Prevention) Act, 1987, Official Secrets Act, 1923,Foreigners Act, 1948, Passport Act, 1967, Sections 2 & 3of the Criminal Law Amendment Act, 1961 and SectionsD121 to 130 of the Indian Penal Code, 1860.

vii) The sentence of imprisonment imposed in default ofpayment of fine shall not be treated as substantive for thepurpose of grant of this remission.

viii) Under NDPS Act in view of Section 32A of the NDPSEAct, 1985

ix)Detenues of any class

x)Pakistan nationals

xi)The persons imprisoned for failing to give security forFkeeping peace for their good behavior under Sections 107/109/110 of the Criminal Procedure Code, 1973.

xii) Cases of prisoners convicted for counterfeiting currencynotes cases under section 489 (A to E) of the Indian PenalCode.

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xiii) Convicted and sentenced under Section 138 of theNegotiable Instruments Act, 1881.

3. This remission will not be granted to the convicts who are onbail on the day of granting this remission. However, they may bereleased if they fulfill the above conditions as on 15th August H

2019, after they surrender in the jails in compliance with orders ofHon’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 theSupreme Court Legal Services Committee and Mr. Amit Kumar, learnedAdditional Advocate General for the State.

4. In Maru Ram vs. Union of India and others[1], the ConstitutionBench of this Court considered the validity of Section 433-A of the Code[2](inserted by Act 45 of 1978 w.e.f. 18.12.1978).The conclusions in themajority 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. Maybe, penologically the prolonged term prescribed by the section issupererogative. If we had our druthers we would have negativedthe need for a fourteen-year gestation for reformation. But oursis to construe, not construct, to decode, not to make a code.

(2) We affirm the current supremacy of Section 433-A over theRemission Rules and short-sentencing statutes made by the variousStates.

(3) We uphold all remissions and short-sentencing passed underArticles 72 and 161 of the Constitution but release will follow, inlife sentence cases, only on Government making in order en masseor individually, in that behalf.

(4) We hold that Section 432 and Section 433 are not amanifestation of Articles 72 and 161 of the Constitution but aseparate, though similar power, and Section 433-A, by nullifyingwholly or partially these prior provisions does not violate or detractfrom the full operation of the constitutional power to pardon,commute and the like.

(5) We negate the plea that Section 433-A contravenes Article20(1) of the Constitution.

(6) We follow Godse case[3] to hold that imprisonment for life lastsuntil 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.)

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the prisoner can claim release only if the remaining sentence isremitted by Government.

(7) We declare that Section 433-A, in both its limbs (i.e. bothtypes of life imprisonment specified in it), is prospective in effect.To put the position beyond doubt, we direct that the mandatoryminimum of 14 years actual imprisonment will not operate againstthose whose cases were decided by the trial court beforeDecember 18, 1978 when Section 433-A came into force. All“Lifers” whose conviction by the court of first instance was enteredprior to that date are entitled to consideration by Government forrelease on the strength of earned remissions although a releasecan take place only if Government makes an order to that effect.To this extent the battle of the tenses is won by the prisoners. Itfollows, by the same logic, that short-sentencing legislations, ifany, will entitle a prisoner to claim release thereunder if hisconviction 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 canbe exercised by the Central and State Governments, not by thePresident or Governor on their own. The advice of the appropriateGovernment binds the Head of the State. No separate order foreach individual case is necessary but any general order mademust be clear enough to identify the group of cases and indicatethe application of mind to the whole group.

(9) Considerations for exercise of power under Articles 72/161may be myriad and their occasions protean, and are left to theappropriate Government, but no consideration nor occasion canbe wholly irrelevant, irrational, discriminatory or mala fide. Onlyin these rare cases will the court examine the exercise.

(10) Although the remission rules or short-sentencing provisionsproprio vigore may not apply as against Section 433-A, they willoverride Section 433-A if the Government, Central or State, guidesitself by the selfsame rules or schemes in the exercise of itsconstitutional power. We regard it as fair that until fresh rules aremade in keeping with experience gathered, current socialconditions and accepted penological thinking — a desirable step,in our view — the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and ordersfor release passed. We cannot fault the Government, if in someintractably savage delinquents, Section 433-A is itself treated as aguideline for exercise of Articles 72/161. These observations ofours are recommendatory to avoid a hiatus, but it is forGovernment, Central or State, to decide whether and why thecurrent Remission Rules should not survive until replaced by amore wholesome scheme.

(11) The U.P. Prisoners’ Release on Probation Act, 1938, enablinglimited enlargement under licence will be effective as legislativelysanctioned imprisonment of a loose and liberal type and suchlicensed enlargement will be reckoned for the purpose of the 14-year duration. Similar other statutes and rules will enjoy similarefficacy.

(12) In our view, penal humanitarianism and rehabilitativedesideratum warrant liberal paroles, subject to security safeguards,and other humanizing strategies for inmates so that the dignityand worth of the human person are not desecrated by makingmass jails anthropoid zoos. Human rights awareness must infuseinstitutional reform and search for alternatives.

(13) We have declared the law all right, but law-in-action fulfilsitself not by declaration alone and needs the wings ofcommunication to the target community. So, the further directiongoes from this Court that the last decretal part is translated andkept prominently in each ward and the whole judgment, in thelanguage of the State, made available to the inmates in the jaillibrary.

(14) Section 433-A does not forbid parole or other release withinthe 14-year span. So to interpret the section as to intensify innertension and intermissions of freedom is to do violence to languageand liberty.”

4.1. The difference between the powers of commutation andremission of sentences exercisable under the provisions of the Code orother statutes on one hand and the constitutional powers under Articles72 and 161 of the Constitution on the other, was dealt with in the majorityjudgment as under:- A

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“59. It is apparent that superficially viewed, the two powers, oneconstitutional and the other statutory, are coextensive. But twothings may be similar but not the same. That is precisely thedifference. We cannot agree that the power which is the creatureof the Code can be equated with a high prerogative vested by theConstitution in the highest functionaries of the Union and the States.The source is different, the substance is different, the strength isdifferent, although the stream may be flowing along the samebed. 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 simplelegislative processes. Therefore, Section 433-A cannot beinvalidated as indirectly violative of Articles 72 and 161. What theCode gives, it can take, and so, an embargo on Sections 432 and433(a) is within the legislative power of Parliament.

60. Even so, we must remember the constitutional status ofArticles 72 and 161 and it is common ground that Section 433-Adoes not and cannot affect even a wee bit the pardon power ofthe Governor or the President. The necessary sequel to this logicis that notwithstanding Section 433-A the President and theGovernor continue to exercise the power of commutation andrelease under the aforesaid articles.

61. Are we back to square one? Has Parliament indulged inlegislative futility with a formal victory but a real defeat? Theanswer is “yes” and “no”. Why “yes”? Because the President issymbolic, the Central Government is the reality even as theGovernor is the formal head and sole repository of the executivepower but is incapable of acting except on, and according to, theadvice of his Council of Ministers. The upshot is that the StateGovernment, whether the Governor likes it or not, can advice andact under Article 161, the Governor being bound by that advice.The action of commutation and release can thus be pursuant to agovernmental decision and the order may issue even without theGovernor’s approval although, under the Rules of Business andas a matter of constitutional courtesy, it is obligatory that thesignature of the Governor should authorise the pardon,commutation or release. The position is substantially the sameregarding the President. It is not open either to the President or the Governor to take independent decision or direct release orrefuse release of anyone of their own choice. It is fundamental tothe Westminster system that the Cabinet rules and the Queenreigns being too deeply rooted as foundational to our system noserious encounter was met from the learned Solicitor-Generalwhose sure grasp of fundamentals did not permit him to controvertthe proposition, that the President and the Governor, be they everso high in textual terminology, are but functional euphemismspromptly acting on and only on the advice of the Council ofMinisters have in a narrow area of power. The subject is nowbeyond controversy, this Court having authoritatively laid downthe law in Shamsher Singh case[4]. So, we agree, even withoutreference to Article 367(1) and Sections 3(8)(b) and 3(60)(b) ofthe General Clauses Act, 1897, that, in the matter of exercise ofthe powers underArticles 72 and 161, the two highest dignitariesin our constitutional scheme act and must act not on their ownjudgment but in accordance with the aid and advice of the ministers.Article 74, after the 42nd Amendment silences speculation andobligates compliance. The Governor vis-à-vis his Cabinet is nohigher than the President save in a narrow area which does notinclude Article 161. The constitutional conclusion is that theGovernor is but a shorthand expression for the State Governmentand the President is an abbreviation for the Central Government.

4.2. The majority judgment did not approve of the exercise ofpower under Article 161 of the Constitution by the Governor while issuingOrder dated 18.07.1978 but emphasized the propriety of making rulesby the Government “for its own guidance”.

“62. An issue of deeper import demands our consideration at thisstage of the discussion. Wide as the power of pardon, commutationand release (Articles 72 and 161) is, it cannot run riot; for no legalpower can run unruly like John Gilpin on the horse but must keepsensibly to a steady course. Here, we come upon the secondconstitutional fundamental which underlies the submissions ofcounsel. 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

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play of power. We proceed on the basis that these axioms arevalid in our constitutional order.

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65. Pardon, using this expression in the amplest connotation, ordainsfair exercise, as we have indicated above. Political vendetta orparty favouritism cannot but be interlopers in this area. The orderwhich is the product of extraneous or mala fide factors will vitiatethe exercise. While constitutional power is beyond challenge, itsactual exercise may still be vulnerable. Likewise, capricious criteriawill void the exercise. For example, if the Chief Minister of aState releases everyone in the prisons in his State on his birthdayor because a son has been born to him, it will be an outrage on theConstitution to let such madness survive. We make theseobservations because it has been brought to our notice that acertain Home Minister’s visit to a Central Jail was considered soauspicious an omen that all the prisoners in the jail were givensubstantial remissions solely for this reason. Strangely enough,this propitious circumstance was discovered an year later andremission order was issued long after the Minister graced thepenitentiary. The actual order passed on July 18, 1978 by theHaryana Government reads thus:[5]

“In exercise of the powers conferred under Article 161,the Constitution of India, the Governor of Haryana grantsspecial remissions on the same scale and terms as mentionedin Government of India, Ministry of Home Affairs Letter No.U. 13034/59/77 dated June 10, 1977 to prisoners whohappened to be confined in Central Jail, Tihar, New Delhi onMay 29, 1977, at the time of the visit of Home Minister,Government of India, to said Jail and who have been convictedby 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

Push this logic a little further and the absurdity will be obvious.No constitutional power can be vulgarised by personal vanity ofmen in authority. Likewise, if an opposition leader is sentenced,but the circumstances cry for remission such as that he is sufferingfrom cancer or that his wife is terminally ill or that he hascompletely reformed himself, the power of remission under Articles72/161 may ordinarily be exercised and a refusal may be wrong-headed. If, on the other hand, a brutal murderer, bloodthirsty in hismassacre, has been sentenced by a court with strong observationsabout his bestiality, it may be arrogant and irrelevant abuse ofpower to remit his entire life sentence the very next day after theconviction merely because he has joined the party in power or isa close relation of a political high-up. The court, if it finds frequentmisuse of this power may have to investigate the discrimination.The proper thing to do, if Government is to keep faith with thefounding fathers, is to make rules for its own guidance in theexercise of the pardon power keeping, of course, a large residuarypower to meet special situations or sudden developments. Thiswill exclude the vice of discrimination such as may arise wheretwo persons have been convicted and sentenced in the same casefor the same degree of guilt but one is released and the otherrefused, for such irrelevant reasons as religion, caste, colour orpolitical loyalty.”

4.3. The majority Judgment cautioned that mere length ofimprisonment may not by itself regenerate goodness in a convict andstated that the rules of remission may be effective guidelines of arecommendatory nature:-

“67. All these go to prove that the length of imprisonment is notregenerative of the goodness within and may be proof of thereverse — a calamity which may be averted by exercise of powerunder Article 161, especially when the circumstances show goodbehaviour, industrious conduct, social responsibility and humaneresponses which are usually reflected in the marks accumulatedin the shape of remission. In short, the rules of remission may beeffective guidelines of a recommendatory nature, helpful toGovernment to release the prisoner by remitting the remainingterm.”

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4.4. It was also observed:-

“69. The rule of law, under our constitutional order, transforms allpublic power into responsible, responsive, regulated exerciseinformed by high purposes and geared to people’s welfare. Butthe wisdom and experience of the past have found expression inremission rules and short-sentencing laws. No new discovery byParliament in 1978 about the futility or folly of these special andlocal experiences, spread over several decades, is discernible.No High-power committee report, no expert body’srecommendations, no escalation in recidivism attributable toremissions and releases, have been brought to our notice.Impressionistic reaction to some cases of premature release ofmurderers, without even a follow-up study of the later life of thesequondam convicts, has been made. We find the rise ofenlightenment in penological alternatives to closed prisons as thecurrent trend and failure of imprisonment as the universal lament.We, heart-warmingly, observe experiments in open jails, filled bylifers, liberal paroles and probations, generosity of juvenile justiceand licensed release or freedom under leash — a la The U.P.Prisoners’ Release on Probation Act, 1938. We cannot viewwithout gloom the reversion to the sadistic superstition that thelonger a life convict is kept in a cage the surer will be hisredemption. It is our considered view that, beyond an optimumpoint of, say, eight years — we mean no fixed formula — prisondetention benumbs and makes nervous wreck or unmitigated bruteof a prisoner. If animal farms are not reformatories, the remissionrules and short-sentencing schemes are a humanising wheel ofcompassion and reduction of psychic tension. We have nohesitation to reject the notion that Articles 72/161 should remainuncanalised. We have to direct the provisional acceptance of theremission and short-sentencing schemes as good guidelines forexercise of pardon power — a jurisdiction meant to be used asoften and as systematically as possible and not to be abused, muchas the temptation so to do may press upon the pen of power.

70. The learned Solicitor-General is right that these Rules areplainly made under the Prisons Act and not under the constitutionalpower. The former fail under the pressure of Section 433-A. Butthat, by no means, precludes the States from adopting as working rules the same remission schemes which seem to us to be fairlyreasonable. After all, the Government cannot meticulously studyeach prisoner and the present praxis of marks, until a moreadvanced and expertly advised scheme is evolved, may work.Section 433-A cannot forbid this method because it is immunisedby Article 161. We strongly suggest that, without break, the sameRules and schemes of remission be continued as a transmigrationof soul into Article 161, as it were, and benefits extended to allwho fall within their benign orbit — save, of course, in specialcases which may require other relevant considerations. The widepower of executive clemency cannot be bound down even byself-created rules.”

5. In Swaran Singh vs. State of U.P. and others[6], the orderpassed by the Governor under Article 161 of the Constitution grantingremission to the person convicted of an offence of murder, even beforethe convict had completed two years’ of actual sentence, was set asideby 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 ofsentence to Doodh Nath. We have noted therefrom that theGovernor was not told of certain vital facts concerning the prisonersuch as his involvement in five other criminal cases of seriousoffences, the rejection of his earlier clemency petition which wasfiled on the same grounds, the report of the jail authorities that hisconduct inside the jail was far from satisfactory, and out of twoyears and five months he was supposed to have been in jail, hewas in fact on parole during the substantial part thereof.

9. Learned counsel for the third respondent Doodh Nath resistedthis appeal on the main plank that any order issued by the Presidentof India under Article 72 of the Constitution of India or by theGovernor of a State under Article 161 thereof is non-justiciableand hence the Court cannot look into the reasons which persuadedthe constitutional functionary to grant reprieve or remission to aprisoner.

10. A Constitution Bench of this Court has considered the scopeof judicial review of exercise of powers under Articles 72 and AB

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A161 of the Constitution of India in Kehar Singh v. Union of India[7].The Bench after observing that the Constitution of India is aconstitutive document which is fundamental to the governance ofthe country under which people of India have provided aconstitutional polity consisting of certain primary organs, institutionsand functionaries to exercise the powers provided in theBConstitution, proceeded to add thus: (SCC p. 210, para 7)

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“All power belongs to the people and it is entrusted by them tospecified institutions and functionaries with the intention ofworking out, maintaining and operating a constitutional order.”

The Constitution Bench laid down that judicial review of thePresidential order cannot be exercised on the merits except withinthe strict limitations defined in Maru Ram v. Union of India[1].The limitations of judicial review over exercise of powers underArticles 72 and 161 of the Constitution have been delineated inthe said decision by the Constitution Bench. It has been observedthat “all public power, including constitutional power, shall neverbe exercisable arbitrarily or mala fide, and ordinarily guidelinesfor fair and equal execution are guarantors of valid play of power”.The Bench stressed the point that the power being of the greatestmoment, cannot be a law unto itself but it must be informed by thefiner canons of constitutionalism.

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11. It was therefore, suggested by the Bench to make rules for itsown guidance in the exercise of the pardon power keeping a largeresiduary power to meet special situations or sudden developments.

12. In view of the aforesaid settled legal position, we cannot acceptthe rigid contention of the learned counsel for the third respondentthat this Court has no power to touch the order passed by theGovernor under Article 161 of the Constitution. If such powerwas exercised arbitrarily, mala fide or in absolute disregard of thefiner canons of the constitutionalism, the by-product order cannotget the approval of law and in such cases, the judicial hand mustbe stretched to it.

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13. In the present case, when the Governor was not posted withmaterial facts such as those indicated above, the Governor wasapparently deprived of the opportunity to exercise the powers in a

fair and just manner. Conversely, the order now impugned fringeson arbitrariness. What the Governor would have ordered if hewere apprised of the above facts and materials is not for us toconsider now because the Court cannot then go into the merits ofthe grounds which persuaded the Governor in taking a decision inexercise of the said power. Thus, when the order of the Governorimpugned in these proceedings is subject to judicial review withinthe strict parameters laid down in Maru Ram case[1] and reiteratedin Kehar Singh case[7] we feel that the Governor shall reconsiderthe petition of Doodh Nath in the light of those materials which hehad no occasion to know earlier.”

6. In Epuru Sudhakar vs. Govt. of A.P.[8], the Division Bench ofthis Court was called upon to consider the challenge at the instance ofthe victim of the crime to the order passed by the Governor of the Stateunder Article 161 of the Constitution granting remission in respect of theunexpired sentence of the accused.

6.1. In the leading Judgment, Pasayat, J. referred to the decisionsof this Court in Swaran Singh[6] and Satpal vs. State of Haryana[9 ]asunder:- “29. The factual scenario in Swaran Singh case[6] needs to benoted. One Doodh Nath was found guilty of murdering one JoginderSingh and was sentenced to imprisonment for life. His appeals tothe High Court and special leave petition to this Court wereunsuccessful. However, within a period of less than 2 years theGovernor of Uttar Pradesh granted remission of the remaininglong period of his life sentence. This Court quashed the said orderof the Governor on the ground that when the Governor was notposted with material facts, the Governor was apparently deprivedof the opportunity to exercise the powers in a fair and just manner.Conversely, the impugned order, it was observed “fringes onarbitrariness”.

30. The Court held that if the pardon power “was exercisedarbitrarily, mala fide or in absolute disregard of the finer canonsof 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 bestretched to it” (Swaran Singh case[6], SCC p. 79, para 12). TheCourt further observed that when the order of the Governorimpugned in these proceedings is subject to judicial review withinthe strict parameters laid down in Maru Ram case[1] and reiteratedin Kehar Singh case[7] “we feel that the Governor shall reconsiderthe petition of Doodh Nath in the light of those materials which hehad no occasion to know earlier” (SCC p. 79, para 13), and left itopen to the Governor of Uttar Pradesh to pass a fresh order inthe light of the observations made by this Court.

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31. In Satpal v. State of Haryana[9] this Court observed that thepower of granting pardon under Article 161 is very wide and doesnot contain any limitation as to the time at which and the occasionon which and the circumstances in which the said powers couldbe exercised.

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32. Thereafter the Court held as follows: (SCC p. 174, para 4)D

“The said power being a constitutional power conferred uponthe Governor by the Constitution is amenable to judicial reviewon certain limited grounds. The Court, therefore, would bejustified in interfering with an order passed by the Governor inexercise of power under Article 161 of the Constitution if theEGovernor is found to have exercised the power himself withoutbeing advised by the Government or if the Governortransgresses the jurisdiction in exercising the same or it isestablished that the Governor has passed the order withoutapplication of mind or the order in question is a mala fide oneFor the Governor has passed the order on some extraneousconsideration.”

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The principles of judicial review on the pardon power havebeen restated in Bikas Chatterjee v. Union of lndia[10].”

6.1.1. It was concluded by Pasayat, J.:- G

“34. The position, therefore, is undeniable that judicial reviewof the order of the President or the Governor under Article 72or Article 161, as the case may be, is available and their orderscan be impugned on the following grounds:

H10 (2004) 7 SCC 634

(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 whollyirrelevant considerations; (d) that relevant materials have been kept out of consideration; (e) that the order suffers from arbitrariness.

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59. When the principles of law as noted above are consideredin the factual background it is clear that the irrelevant andextraneous materials entered into the decision-making process,thereby vitiating it.

60. The order granting remission which is impugned in thepetitions is clearly unsustainable and is set aside. However, itis open to Respondent 1 to treat the petition as a pending onefor the purpose of reconsideration. It shall be open to theGovernor to take note of materials placed before him by thefunctionaries of the State, and also to make such enquiries asconsidered necessary and relevant for the purpose ofascertaining the relevant factors otherwise. The writ petitionsare allowed to the extent indicated above. No costs.”

6.2. Kapadia, J. (as the learned Chief Justice then was), in hisconcurring opinion stated:- “65. Exercise of executive clemency is a matter of discretion andyet subject to certain standards. It is not a matter of privilege. It isa matter of performance of official duty. It is vested in the Presidentor the Governor, as the case may be, not for the benefit of theconvict only, but for the welfare of the people who may insist onthe performance of the duty. This discretion, therefore, has to beexercised on public considerations alone. The President and theGovernor are the sole judges of the sufficiency of facts and of theappropriateness of granting the pardons and reprieves. However,this power is an enumerated power in the Constitution and itslimitations, if any, must be found in the Constitution itself.Therefore, the principle of exclusive cognizance would not apply A

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when and if the decision impugned is in derogation of a constitutionalprovision. This is the basic working test to be applied while grantingpardons, reprieves, remissions and commutations.

66. Granting of pardon is in no sense an overturning of a judgmentof conviction, but rather it is an executive action that mitigates orsets aside the punishment for a crime. It eliminates the effect ofconviction without addressing the defendant’s guilt or innocence.The controlling factor in determining whether the exercise ofprerogative power is subject to judicial review is not its source butits subject-matter. It can no longer be said that prerogative poweris ipso facto immune from judicial review. An undue exercise ofthis power is to be deplored. Considerations of religion, caste orpolitical loyalty are irrelevant and fraught with discrimination.These are prohibited grounds. The Rule of Law is the basis forevaluation of all decisions. The supreme quality of the Rule ofLaw is fairness and legal certainty. The principle of legalityoccupies a central plan in the Rule of Law. Every prerogative hasto be subject to the Rule of Law. That rule cannot be compromisedon the grounds of political expediency. To go by such considerationswould be subversive of the fundamental principles of the Rule ofLaw and it would amount to setting a dangerous precedent. TheRule of Law principle comprises a requirement of “Governmentaccording to law”. The ethos of “Government according to law”requires the prerogative to be exercised in a manner which isconsistent with the basic principle of fairness and certainty.Therefore, the power of executive clemency is not only for thebenefit of the convict, but while exercising such a power thePresident or the Governor, as the case may be, has to keep inmind the effect of his decision on the family of the victims, thesociety as a whole and the precedent it sets for the future.

67. The power under Article 72 as also under Article 161 of theConstitution is of the widest amplitude and envisages myriad kindsand categories of cases with facts and situations varying fromcase to case. The exercise of power depends upon the facts andcircumstances of each case and the necessity or justification forexercise of that power has to be judged from case to case. It isimportant to bear in mind that every aspect of the exercise of thepower under Article 72 as also under Article 161 does not fall in the judicial domain. In certain cases, a particular aspect may notbe justiciable. However, even in such cases there has to existrequisite material on the basis of which the power is exercisedunder Article 72 or under Article 161 of the Constitution, as thecase may be. In the circumstances, one cannot draw the guidelinesfor regulating the exercise of the power.”

7. In State of Haryana and others vs. Jagdish[11 ]a Bench ofthree Judges of this Court observed:- “46. At the time of considering the case of premature release ofa life convict, the authorities may require to consider his casemainly taking into consideration whether the offence was anindividual act of crime without affecting the society at large;whether there was any chance of future recurrence of committinga crime; whether the convict had lost his potentiality in committingthe crime; whether there was any fruitful purpose of confiningthe convict any more; the socio-economic condition of the convict’sfamily and other similar circumstances.”

8. In Devender Pal Singh Bhullar v. State (NCT of Delhi)[12 ]theDivision Bench of this Court concluded:- “47. The propositions which can be culled out from the ratio ofthe abovenoted judgments are:

47.1. The power vested in the President under Article 72 and theGovernor under Article 161 of the Constitution is a manifestationof prerogative of the State. It is neither a matter of grace nor amatter of privilege, but is an important constitutional responsibilityto be discharged by the highest executive keeping in view theconsiderations of larger public interest and welfare of the people.

47.2. While exercising power under Article 72, the President isrequired to act on the aid and advice of the Council of Ministers.In tendering its advice to the President, the Central Governmentis 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 crimecommitted by him, its impact on the society and all incriminatingand extenuating circumstances. The same is true about the StateGovernment, which is required to give advice to the Governor toenable him to exercise power under Article 161 of the Constitution.On receipt of the advice of the Government, the President or theGovernor, as the case may be, has to take a final decision in thematter.Although, he/she cannot overturn the final verdict of theCourt, but in appropriate case, the President or the Governor, asthe case may be, can after scanning the record of the case, formhis/her independent opinion whether a case is made out for grantof pardon, reprieve, etc. In any case, the President or the Governor,as the case may be, has to take cognizance of the relevant factsand then decide whether a case is made out for exercise of powerunderArticle 72 or 161 of the Constitution.

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68. While examining challenge to the decision taken by thePresident under Article 72 or the Governor under Article 161 ofthe Constitution, as the case may be, the Court’s power of judicialreview of such decision is very limited. The Court can neither sitin appeal nor exercise the power of review, but can interfere if itis found that the decision has been taken without application ofmind to the relevant factors or the same is founded on theextraneous or irrelevant considerations or is vitiated due to malafides or patent arbitrariness (Maru Ram v. Union of India[1], KeharSingh v. Union of India[7], Swaran Singh v. State of U.P.[6], Satpalv. State of Haryana[9], Bikas Chatterjee v. Union of India[10],Epuru Sudhakar v. Govt. of A.P.[8] and Narayan Dutt v. Stateof Punjab[13]).

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9. It is accepted by the learned Additional Advocate General forGthe State that every convict who came within the stipulations laid downby the Policy, that is to say (i) if the age of the convict was above 75years 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 sentencerespectively, (iii) and, if the conduct of the convict in jail was H13 (2011) 4 SCC 353

satisfactory,in that the convict had not committed any major jail offencein the last two years, (iv) and the convict did not come within any of theexceptions laid down in para (2) of the Policy;the convict was releasedforthwith.

It is also accepted that no individual facts or material pertaining toany of the cases were placed before the Governor and that the benefitin each of the cases was conferred by the Executive itself in terms ofthe Policy. The Governor, thus, did not have the occasion to look into theissues such as severity of the crime or the manner in which the crimewas committed or the impact of the crime on the Society or how thematter was seen and considered by the concerned courts while holdingor upholding that the concerned convicts were found guilty of the offencesin question.

10. The consistent line of cases decided by this Court has laiddown that the principles of Section 433-A of the Code do not and cannotapply to the exercise of constitutional power either under Article 72 orunder Article 161 of the Constitution. It has always been accepted thatno limitation can be read into the exercise of such constitutional powerand that the sovereign power would not be bound by restrictions emanatingfrom Section 433-A of the Code.

11. However, the question that arises is whether in exercise ofpower under Article 161 of the Constitution, a policy could be laid downsetting out certain norms or postulates, on the satisfaction of which thebenefit could thereafter be conferred upon or granted to the convicts bythe executive without even placing the individual facts and materialpertaining to the case of the convict, before the Governor. It is true thatin conclusion ‘(8)’ in Maru Ram[1 ]there are observations that no separateorder for each individual case would be necessary but a general ordermust be clear enough to identify the group of cases and indicate theapplication of mind to the whole group. The basis for such conclusion isin the discussion in the paragraphs quoted hereinabove but at the sametime the order issued on 18.07.1978 in exercise of powers conferredunder Article 161 of the Constitution which in an omnibus way had grantedbenefit to the convicts, did not meet with the approval of the Court.Further, the observations in para 69 in Maru Ram[1 ]indicate that theremission and short-sentencing schemes then in existence could be takenas good guidelines for exercise of pardon power. To similar effect arethe observations in para 70.

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A12. The decisions of this Court rendered since Maru Ram[1 ]andsome of them being decisions of the Benches of three Judges of thisCourt, do show that the relevant material must be placed before theGovernor in order to enable him to exercise the power under Article 161of the Constitution and failure on that count could result in quashing ofthe concerned orders of remission issued under Article 161 of theBConstitution. For example, the observations in para 13 in Swaran Singh[6],and thosein paragraphs 34 and 67 in Epuru Sudhakar[8 ]emphasize thatthe power must be exercised depending upon the facts and circumstancesof the concerned case and based on facts and materials of the case.The observations have also gone to the extent of stating that the entiretyCof the matter must be before the Governor for exercise of power underArticle 161 of the Constitution and that all the relevant aspects includingseriousness of the crime and the manner in which the crime wascommitted must also be part of the consideration. That exercise of poweralone, where all the relevant facts and circumstances of the case wereconsidered, is to be accepted to be correct and valid.D

13. The modalities adopted in the present matter, however,unmistakably, show that the individual facts and circumstances of thecase were not even placed before the Governor. The basic aspects viz.,the manner in which the crime was committed, the impact of the crimeon the Society and the seriousness of the crime got completely suppressedEand relegated in the background under the norms laid down in the policyand it was then left to the Executive to see whether any individual casecame within the parameters laid down by the policy. The basic facts andcircumstances of the case were not even looked into. The correctnessand propriety of such exercise is the matter in issue.F

14. Considering the fact that some of the observations in MaruRam[1 ]including the last sentence in conclusion ‘(8)’ were relied upon byMr. Shikhil Suri, learned Advocate to submit that the exercise of layingdown the norms by a policy was correct and that theappellant was rightlygranted remission; and as the decision in Maru Ram[1] was rendered byGthe Constitution Bench of this Court, in our considered view, the presentmatter is required to be placed before a larger Bench.

15. For facility, we may frame the questions for consideration asunder:- Whether in exercise of power conferred under Article 161 of theHConstitution a policy can be framed, whereunder certain norms or postulates are laid down, on the satisfaction of which the benefit ofremission can thereafter be granted by the Executive without placingthe facts or material with respect to any of the cases before the Governorand whether such exercise can override the requirements under Section433-A of the Code.

16. We, therefore, direct the Registry to place the matter beforethe Hon’ble the Chief Justice for constituting a Bench of appropriatestrength to consider the issues raised in the present matter.

17. Before we part, we must record our appreciation for theassistance rendered by Mr. Shikhil Suri, learned Advocate who appearedon behalf of the Supreme Court Legal Services Committee.

Kalpana K. Tripathy

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