In Re: R. Ragupathy, a punal Advocate Madras, District Committee for Legal Aid and Advise 3, Law Chamber, High Court, Madras

S. Natarajan, J.—This batch of writ petitions has been filed by various persons, who are undergoing sentence of imprisonment for life in the

several prisons in the State for their convictions under S.302, I.P.C. In most of the cases, the petitioners seek the issue of writs of habeas corpus

for being set at liberty on the ground that their premature release from prison has been recommended by the Advisory Board, but in spite of it, the

State Government has failed to accept the recommendation of the Advisory Board and remit the unexpired portion of the sentence and therefore,

their further detention in prison is illegal. In the other cases, the averments of the petitioners are that in spite of their having served ten years or more

of prison sentence and having earned a blemishless record of service in prison, the Advisory Beard has wrongly failed to recommend to

Government their premature release and therefore, their continued detention in prison is illegal, and they should be set at liberty forthwith.

Legal aid has been provided to all the petitioners, to file these petitions by the Madras District Committee for Legal Aid and Advice, and as a

consequence thereof, Messrs. N.T. Vanamamalai, K.V. Sankaran, R. Shanmughasundaram and Mrs. Aruna Jagadeesan hive spared their time

and services to argue the case on behalf of the petitioners.

In support of the petitions, affidavits have been filed either by the convicts themselves, or by Advocates who are members of the Committee for

Legal Aid and Advice or by the panel lawyers appearing for the poor litigants on behalf of the Legal Aid Committee. The averments contained in

the affidavits filed in support of the various petitions are more or less identical. By way of illustration, we may refer to the affidavit filed by Thiru

Ragupathi, an Advocate practising in this Court and a member of the Madras District Committee for Legal Aid and Advice, on behalf of Thiru G.

Kathamuthu, Life Convict No. 35217, confined in the Central Prison, Tiruchy, concerned in Writ Petition No. 3430 of 1982. The affidavit

proceeds as follows:

Kathamuthu was convicted for an offence under S.302, I.P.C., and sentenced to undergo imprisonment for life by the Sessions Judge, Thanjavur

in Sessions Case No. 59 of 1970 on 17th October, 1970, By reason of the conviction, the convict has already undergone imprisonment for eleven

years and six months. The Advisory Board constituted by the Government for considering the question of premature release of life convicts, called

for reports from the District Collector, Thanjavur and the Probation Officer. Mannargudi, with reference to the desirability or otherwise of the life

convict being released from prison prematurely. The District Collector, Thanjavur and the Probation Officer, Mannargudi sent reports

recommending the case of the life convict for premature release. Besides, the life convict''s record of behaviour and conduct in prison was also

blemishless. In spite of that, the Advisory Board did not recommend the case of the life convict to Government for premature release. The convict

received a communication from the Government dt. 4th September, 1981 stating that the question of his being released prematurely from prison

will be taken up by Government for consideration two years hence. The Government had not given any reason in the order for refusing to release

the convict prematurely or for deciding to review his case two years hence and not earlier. The Crl.P.C., was amended and S.433-A was

included. As per that section, irrespective of anything contained in S.432, Crl.P.C, if a person had been sentenced to imprisonment for life, upon

conviction for an offence for which death sentence is one of the punishments provided by law, or if a person had been sentenced to death, but the

sentence had been commuted under S.433 Crl.P.C., into one of imprisonment for life, then such person shall not be released from prison unless he

had served at least 14 years of imprisonment. The constitutional validity of this amendment was challenged by certain life convicts before the

Supreme Court of India in Writ Petition Nos. 865, 1147, etc., of 19 79 (Maru Ram v. Union of India 1980 S.C. 2147) and by judgment dated

11th November, 1980, the Supreme Court held that S.433-A was valid in law and was not an unconstitutional provision. Even so, while dismissing

the writ petitions, the Supreme Court held that S.433-A, Crl.P.C., cannot have retrospective effect and as such, every person, who has been

convicted by the sentencing Court before December 18, 1978, shall be entitled to the benefits accruing to him from the remission scheme or short

sentencing projects, as if S.433-A did not stand in his way. However, the direction of the Supreme Court has not been carried out and life

convicts, who are entitled to be released prematurely have not been released from the Central Prisons in Tamilnadu by the Government. In some

cases, in spite of the Advisory Board''s recommendation to release the convicts prematurely, the Government has not accepted the

recommendation and passed orders of release, but on the other hand, the Government has passed orders post-posing the consideration of the

premature release of the convicts by certain number of months or years. The Government, having prescribed the modality for consideration of the

premature release of convicts, is bound by the recommendations of the Advisory Board and the rejection of the recommendation of the Board by

Government without recording proper reasons therefor and communicating those reasons to the convicts concerned, amounted to an arbitrary

exercise of power by the Executive authority and is violative of the rule of nature justice. Hence, the Court should issue a writ in the nature of a writ

of habeas corpus directing the respondents to produce before court the person and body of Kathamuthu, the life convict, and set him at liberty.

On behalf of the respondents, common counter-affidavits have been filed to cover most of the petitions, excepting few petitions, wherein

separate counter-affidavits have been filed. A common counter-affidavit sworn to by a Deputy Secretary to Government, Home Department,

Government of Tamilnadu, has been filed in Writ Petition Nos. 7942 to 7945, 8199 to 8203, 8531 to 8539, 8555 to 8566 and 8567 to 8575 of

1982, and therein, the stand taken by the Government has been set out in detail, as under: In the State of Tamilnadu, a procedure has been

prescribed in Rr.310-A and 310-B of the Tamilnadu Prisons and Reformatory Manual, Volume 2 (hereinafter referred to as the Prisons Manual)

for consideration of the premature release of the life convicts. According to the procedure, a lifer, who has been convicted and sentenced prior to

18th October, 1978, i.e., before the introduction of S.433-A Crl.P.C., has to undergo actual sentence of 10 years excluding any remission.

However a remission of six months granted in G.O.Ms. No.2475 Hone Department, dt. 14th September, 1977 will be deducted from the actual

sentence of 10 years. Apart from this, the lifers, who have undergone vasectomy operation, are also eligible for the deduction of one year as

special remission from the total of 10 years. In other words, a lifer, who has not undergone vasectomy operation has to undergo 9� years of

actual sentence and a lifer who has undergone vasectomy operation has to undergo 8� years of actual sentence including set off period, i.e.,

period spent in remand. Before placing the case of a lifer, for premature release before the Advisory Board, reports from the Probation Officer

and the Collector, will be called for and placed before the Board for its perusal. The Board will then consider the case and offer its opinion on their

premature release. The Superintendent of the Prison will forward the records to the Inspector General of Prisons, who in turn will forward the

records to the Government along with his opinion for final orders. The Government is the authority to order the release of a lifer under R.310-A(d)

of the Prisons Manual. Though the Courts have held that imprisonment for life means imprisonment throughout an accused''s life, the Government,

as a gesture, prescribed certain norms for review of the cases of lifers for premature release. The Government, after perusal of the Advisory

Board''s opinion, either orders the premature release or resubmission of the case after a specified period. Lifers cannot claim release as of right.

After the judgment of the Supreme Court, in Writ Petition Nos. 865, 1144 etc., of 1971 (Maru Ram v. Union of India 1980 S.C. 2147 ) holding

that S. 433-A, Crl.P.C., will not have retrospective effect, the Government issued orders in G.O.Ms. No. 34 Home Department, dt. 6th January,

1981 to review the cases of lifers convicted prior to 18th December, 1978 following the old procedure and in pursuance thereof, several hundreds

of cases of lifers have been reviewed and the Government have ordered release in several cases and ordered resubmission for further review in

other cases after specified period. The Government is the final authority to order the release of a lifer under S.310-A (d) of the Prisons Manual. In

Writ Petition No. 1038/81 this Court has held that merely because the lifers have earned remissions, they are not entitled as of right to demand

premature release and the question of premature release is a matter to be decided by the State Government in consultation with the Advisory

Board. The question of remission lies exclusively within the province of the appropriate Government and hence, it is not open to the petitioners to

say that their further detention in prison will amount to illegal detention and therefore, they should be set at liberty by means of the issue of a writ of

habeas corpus. Therefore, a (sic) cannot claim premature release as of right and such being the case, all the writ petitions deserve to fail and should

be dismissed.

Arguing the case of the petitioners, Mr. Vanamamalai, learned counsel stated that though the Government is the sole authority to remit sentences

and order premature release of prisoners including life convicts, the Government, in exercising its powers is bound to act in conformity with the

provisions of the Constitution and the principles underlying the policy of remitting sentences of prisoners and ordering their premature release. The

counsel relied upon D. Bhuvan Mohan Patnaik and Others Vs. State of Andhra Pradesh and Others, and submitted that even prisoners have rights

under Arts. 14 and 21 of the Constitution and as such, the prisoners are entitled to a fair and equal consideration of their cases for premature

release and for guarantee of personal liberty. The counsel referred to Ss.432, 433 and 433-A Crl.P.C., (hereinafter referred to as the Code) and

stated that since all these petitioners have come to be convicted long before S.433-A was introduced, they are entitled in law to have their cases

duly and properly considered by the Government for premature release and for equality of treatment in the matter of granting remissions of the

unexpired terms of the sentences. The further argument was that sub-S.(5) of S.432 of the Code confers power on the appropriate Government to

frame general rules or pass special orders for the purpose of giving directions as to the suspension of sentences and the conditions on which

petitions should be presented and dealt with and in accordance with these provisions as well as sub-S.(5) of S.59 of the Prisons Act, 1894, the

State Government has framed rules for prescribing the modality for regulating the shortening of sentences by the grant of remissions. However, in

considering the cases of life convicts for granting remissions and ordering premature release, the Government has not acted in a consistent and

intelligible manner, but on the other hand, it has decided the cases of alt these petitioners arbitrarily and furthermore, has not given any reasons,

except in one case (viz., Writ Petition No. 5851 of 82) for rejecting the cases of the petitioners for granting premature release. By themselves, the

Rules are not invalid, but the manner in which the Government has sought to act under the Rules gives room for comment and calls for interference

of court. The Government is vested with powers under the Statute, viz., S.432 of the Code, and by the Constitution (Article 161) for granting

remission of sentences, but by no stretch of imagination, can it be said that the Government is entitled to act in any manner it pleased and its action

is not liable for challenge in a court of law. The concept of Dual State is anathema to a system based on the Rule of Law and therefore, all

administrative or executive actions are open to scrutiny by the Courts on the touch-stone of legality (Vide: Chief Settlement Commissioner,

Rehabilitation Department, Punjab and Others, etc. Vs. Om Prakash and Others etc., . Even powers exercisable under the Constitution by the

Constitutional functionaries such as the President and the Governor, have now been held to be justiciable. Vide: Harbans Singh Vs. State of Uttar

Pradesh and Others, . Similarly, even if a Society registered under The Societies Registration Act, is found to be an instrumentality or agency of the

Government, it will constitute an ''authority'' within the definition of Art. 12, and therefore, it will be subject to the basic obligation to obey the

fundamental rights as the Government itself will be bound. Vide: Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, . The

expression, ""personal liberty,"" occurring in Art.21 takes in and comprises the residue of all freedoms, while Art. 19(1) deals with particular species

or attributes of the freedom and therefore, the petitioners, even in their state of incarceration, are entitled to ask of the Government to consider

their cases for premature release on a rational uniform basis, and not in an arbitrary or whimsical manner. A rejection of the case of a lifer, who has

served the required number of years in prison for being held eligible for premature release whether his case is recommended or not by the

Advisory Board, results in certain civil consequences to the prisoner. When such civil consequences are affected, the aggrieved prisoner is entitled

to move the Court to scrutinise the action of the Government and see whether the order has been passed on rational and intelligible grounds or

whether it is vitiated by arbitrariness and inequality of treatment. Wherever Government has failed to give reasons for rejection of the convict''s

case for premature release, the Government is bound to give reasons. Any lacuna on the part of the Government to furnish reasons in the order of

rejections cannot be rectified by Government by now trying to give reasons for the earlier order passed by it. Even the solitary case where the

Government has given reason in the order itself for its refusal to grant premature release, stands vitiated in law, because the affected prisoner has

not been given an opportunity to put forth his case and therefore, the order offends the principle of audi alteram partem, Moreover, in several

cases the Government, while refusing to pass an order of premature release, has directed the Inspector General of Prisons to put up the cases of

the convicts for reconsideration by Government either after six months, or one year or two years. Even here, the Government has not acted

uniformly or given any reason for directing the authorities to put up the cases of different convicts at different points of time for reconsideration by

Government. Hence Mr. Vanamamalai submitted that all the petitions deserve to be allowed.

Affirming the arguments of Mr. Vanamamalai, Mr. K.V. Sankaran assailed the Government''s stand and argued that because it has exclusive

power to grant remissions or commute sentences, it is not open to the Government to say that the exercise of such power is a privileged matter and

the Government is not liable to give the reasons which had weighed with it for either granting remission or for refusing to do so, and that no convict

is entitled as of right, to claim remission. In support of this argument, the counsel referred to Maru Ram v. Union of India 1982 (2) Scale 202,

where it was held that though considerations for exercise of the power under Art.72/161 of the Constitution may be myriad and their occasions

protean and the exercise of powers under the Articles are left to the Government, the exercise of such powers should not be vitiated by irrelevant

or irrational considerations or by the vice of discrimination or mala fides. The counsel, therefore, argued that the manner in which the Government

exercised its powers of remission either under S.432 of the Code or Art. 161 of the Constitution, is open to challenge in a court of law on the

ground that the power has not been exercised in accordance with law or the principles of natural justice. Mr. Sankaran also stated that if the

Government refused to grant premature release to a convict whose case was placed for consideration, then the Government should give reasons

for its decision. In the course of his argument, Maru Ram and Others Vs. Union of India (UOI) and Others, , where the Court issued a mandamus

to the Government to implement the recommendation of the Superintendent of the Jail and release a convict, who was below the age of twenty

years at the date of the commission of the offence and who had completed ten years of imprisonment inclusive of remission. The counsel again

relied upon Maru Ram''s case 1982 (2) Scale 202, and contended that every convict who has completed the prescribed period of sentence in

prison is entitled in law to seek premature release and it is not open to Government to say that the premature release of prisoners is an act of

benevolence and no one is entitled to seek premature release as of right. Alternatively the counsel argued that even if the granting of remissions of

sentences is a gesture of goodwill of the Government towards prisoners who had reformed in jail, the Government must act in a fair, reasonable

and uniform manner in exercising its powers of prerogative and the power should not be exercised in an arbitrary and capricious manner.

In reply to the arguments of Mr. Vanamamalai and Mr. Sankaran, the learned Advocate General took the stand that the Government had not

exercised its powers of remission in an unreasonable, arbitrary, capricious or whimsical manner, but in a fair and uniform manner, after taking

several factors into consideration such as, the recommendation of the Advisory Board, the unexpired period of sentence, etc. Before setting out the

arguments of the Advocate General, it may be mentioned at this stage itself that the Advocate General did not take the stand that the powers of

remission exercisable by the Government either under S.432 of the Code or Art.161 of the Constitution are so absolute and privileged, as to mean

that the actions of Government are not open to challenge in courts of law. We are mentioning this fact even at the outset, because the stand taken

by the Government in the counter-affidavits is that ""the Government only prescribed certain modality as a gesture for considering premature release

of lifers and the Government is not straightway bound to accept the recommendation of the Board ""and"" it is upto the Government to order

premature release or decline it, ""and"" the question of release of lifers prematurely is entirely a matter for the State Government to decide (i.e. the

Executive Authority),"" and ""it has nowhere been laid down that the Government should specify the reasons for declining the premature release of

lifers."" The further averment is that ""the Government is also not expected to reveal the reasons for declining the release of lifers under any rule of

law."" The learned Advocate General argued that a sentence of transportation for life (awarded prior to the amendment of the I.P.C., or

imprisonment for life, must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person''s

natural life, that unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the I.P.C., or the Code

of Criminal Procedure or under the Constitution, a prisoner sentenced to life imprisonment is bound in law to serve his life-term in prison. He

pointed out that the Prisons Act does not confer on any authority a power to commute or remit sentences and it provides only for the regulation of

prisons and for the treatment of prisoners confined therein. As the sentence of imprisonment for life is one of indefinite duration, the remission

earned in prison cannot in practice held such a convict as it is not possible to predicate the time of his death. It was on account of that, the rules

provide for a procedure to enable the appropriate Government to remit the sentence under S.432 of the Code (S.401 off the Old Code) on a

consideration of the relevant factors including the period of remissions he earned, and the question of granting remission is exclusively within the

province of the appropriate Government. Therefore, the Advocate-General submitted that no life convict is entitled as a matter of right, to claim

remission or premature release. He then referred to S.432(5) of the Code which empowers the appropriate Government to make rules or pass

special orders for giving directions with reference to the suspension of sentences and the conditions on which petitions should be presented and

dealt with, as well as sub-S.(5) of 59 of the Prisons Act, 1894, which also empowers the State Government to make rules consistent with the Act

in respect of several matters including the award of marks and the shortening of sentences. Reference was then made to R.310-A in the Prisons

Manual and it was pointed out how the Government has prescribed a modality for considering the premature release of lifers, viz., factors for

which, and manner in which remissions are to be given, how the Advisory Board is to be constituted, how cases are to be placed before

Government for consideration, etc. The learned Advocate-General pointed out that the Prisons Act and the Rules framed thereunder do not

provide for a substituted or a lesser sentence for a life convict and such being the case, life convicts are not entitled, as of right, to place reliance on

the remissions earned by them in prison and seek premature release from prison. The Advocate-General referred to Arts. 72 and 161 of the

Constitution and stated that while the Constitution confers powers on the President and the Governor of a State to grant pardons, reprieves,

respites or remissions of punishments, etc., relating to a matter to which the executive power of the Union of the State extends, those provisions do

not at the same time confer a right on convicted persons to seek enforcement of the commutation of their sentences or premature release from

prison. The Advocate-General then submitted that if the State Government refuses to remit the unexpired portion of imprisonment of a life convict,

the refusal would generally have nexus to the unexpired portion of the sentence and in view of this factor, it cannot be said that Government''s

decision is arbitrary or whimsical. In support of this contention, the learned Advocate-General placed before us two files relating to prisoners,

wherein it has been observed that, having regard to the extent of the unexpired period of sentence, the State Government was not inclined to order

premature release of the convicts in question. Hence the argument was that, generally the Government''s acceptance or refusal to give remission of

sentence was with reference to certain relevant factors, but those factors may not have been made explicit in the order passed by Government. The

further argument was that if the Government refused to grant remission in a particular case on account of certain peculiar features, it cannot be

straightway said that the Government''s action is irrational or illogical. Yet another contention put forth was that even if the Government granted

remission to a convicted person who had put in lesser number of years in prison in preference to a convict who had put in longer period of

sentence that would not be a ground for an aggrieved prisoner to say that he should also be given similar treatment and granted premature release.

In other words, the contention was that even if Government had acted illegally in a particular case, it would not entitle another person to claim

parity or equality of treatment in a matter which is illegal. In support of this argument, the Advocate General referred to a decision of this Court in

A.C. Paul v. Tax Recovery Officer, Tirunelveli and another Writ Petition No. 359/75 of the Court Order dt. September 20, 1977 (1977) T.L.N.J.

453, at 458. One other argument put forward was that while considering the cases of life convicts for premature release, the Government cannot

overlook the deterrent aspect of the sentence and should be guided entirely by the other factors relevant to sentencing policies adopted by courts.

It was then urged that if, in a particular case, the Government had ordered premature release on account of certain considerations, which appeared

to Government to be relevant factors, the rejection of the cases of other life convicts for premature release cannot he construed to be an arbitrary

rejection of their claims. As a proposition of law, the Advocate-General submitted that the Government is entitled to an initial presumption of bona

fides in respect of the orders passed by it (Vide Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs.

State of Jammu and Kashmir and Another, , and therefore, if the petitioners want to attack the validity of the orders passed by the Government, it

is for them to show that the orders are discriminatory in nature or they have not been passed on the basis of intelligible grounds.

Dealing with the criticisms levelled by the petitioners'' counsel about the Government failing to give reasons for rejecting a convict''s case of

premature release and the Government''s duty to observe the rule of audi alteram partem before passing an adverse order against a convict, the

Advocate-General submitted that the Government is bound to give reasons only if the convicts have a statutory right to be granted premature

release and since the convicts do not have any such right in law, they cannot accuse the Government of having committed any illegality in passing

the impugned orders without giving reasons therefor. As illustrative of this contention, the Advocate-General pointed out that when a Government

employee is compulsorily retired from service, it is not necessary that the order of compulsory retirement should give the reasons for which the

employee is being compulsorily retired. The further argument was that if anyone was aggrieved by the order and challenged it in court, it was open

to the Government to produce the relevant file and convince the Court that the order had been passed for proper reasons and there had not been

any abuse or arbitrary exercise of power by Government in passing the impugned order. The Advocate-General further contended that the rule of

audi alteram partem is not an inflexible one and the application of the rule will depend upon the facts of such case.

Having referred in brief to the contentions of the learned counsel for the petitioners and the learned Advocate-General, we may now proceed to

consider, in a more detailed manner, the various matters which constitute the subject of debate. It would be apposite, in the first place, to

understand the nature and extent of a sentence of life imprisonment. It does not matter whether a sentence of life imprisonment has been awarded

to an accused by the trial court itself or whether a sentence of death awarded by the trial court has been subsequently altered by the High Court or

the Supreme Court, or by the Governor of State or the President of India acting under Art. 161 or Art.72 of the Constitution as the case may be.

The precise matter came up for consideration in Gopal Vinayak Godse Vs. The State of Maharashtra and Others, . The Supreme Court held as

follows:

A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the

remaining period of the convicted person''s natural life....

...Unless the said sentence (imprisonment for life) is commuted or remitted by appropriate authority under the relevant provisions of the Indian

Penal Code or Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison....

This pronouncement has been reiterated in Maru Ram and Others Vs. Union of India (UOI) and Others, as follows:

Life sentence is nothing less than life-long imprisonment.... A life sentence is a sentence for a whole life.

Even so, it had never been the policy of Government to condemn prisoners sentenced to life imprisonment to a life in prison to the last breath of the

convicts. On the other hand, the State had adopted a benign approach to the matter and in accordance with such outlook, certain provisions have

been made in law with a view to provide a system of remission. S.57 of the I.P.C. provided that ""in calculating fractions of terms of punishment,

imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years."" Provision was also made in the Crl.P.C., for suspensions,

remissions and commutations of sentence. S.401 of the old Code, corresponding to S.432 of the new Code (II of 1974), provided for the

Government suspending or remitting sentences and S.402 of the old Ode, corresponding to S.433 of the new Code'' provided for the Government

commuting the punishment. We are not concerned with S.433, but only with S.432 of the Code. Even here, it is enough if reference is made only

to sub-Ss.(1) and (5) and they read as follows:

Sub-S(1) of S.432 Crl.P.C.:-- ""When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time

without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any

part of the punishment to which he has been sentenced.

Sub-S.(5):--""The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the

conditions on which petitions should be presented and dealt with:

(proviso omitted).

Another Enactment which requires mention, is the Prisons Act, 1894. S.59 of the said Act enables the State Government to make rules consistent

with the Act in respect of several matters enumerated therein. In so for as the subject-matter of the writ petition s is concerned, sub-S.(5) alone

calls for extraction, and the relevant portion of it reads as follows:

for the award of marks and the shortening of sentences;

It is in pursuance of sub-S.(5) of S.59 of the Prisons Act, the State Government have framed R.310-A. The relevant portion of the Rule reads as

follows:

R.310-A: (a) The sentences of all prisoners sentenced to imprisonment for life or to more than 20 years imprisonment in the aggregate shall, for the

purpose of this rule, be deemed to be sentences of imprisonment for 20 years.

(d)(i) The case of prisoners coming under sub-R.(a) shall be submitted to Government for orders with the recommendation of the Advisory Board

whether it recommends release or not, together with the judgment of the court and other connected papers.

(ii) If the Government refuse to order release of a prisoner under the two-thirds-remission rules, they shall direct the resubmission of his case for

their consideration again after such period as they deem fit... ... ...

(proviso omitted.)

R.310-B sets out the manner of constitution of the Advisory Board for the city of Madras and mofussil areas and the number of meetings the

Advisory Board should hold. R.310-C provides for police reports being obtained in respect of prisoners whose cases are to be placed before the

Advisory Board. The subsequent rules lay down how remissions are to be granted, etc. Lastly, we may refer to Art.72 and Art.161 of the

Constitution, which confer power on the President and the Governor of a State respectively to grant pardons and to suspend, remit or commute

sentences in appropriate cases; Those Articles are as under:

Art.72 : (1) The President shall have the power to grant pardons reprieves, respites or remissions of punishment or to suspend, remit or commute

the sentence of any person convicted of any offence--

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union

extends;

(c) in all cases where the sentence is a sentence of death.

(Cl. (2) and (3) omitted)

Art. 161:--""The Governor of a State shall have the power to grant pardons reprieves, respites or remissions of punishment or to suspend, remit or

commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State

extends.

The question now arises whether, by reason of the powers conferred on Government by statute and the President or Governor by the

Constitution, for remission of sentences, and by reason of the remission system formulated by Government under the Rules, a life convict is entitled,

as of right, to contend that life imprisonment ought to be construed as imprisonment for twenty years and that the remissions earned by him in

prison ought to be necessarily taken into consideration and he should be prematurely released from prison even if the sentence awarded to him is

one of imprisonment for life. The answer must be in the negative. Dealing with the matter, the Supreme Court held in Gopal Vinayak Godse Vs.

The State of Maharashtra and Others, as follows:

It is said that the Bombay Rules governing remission system substituted a definite period for life imprisonment and, therefore, if the aggregate of the

term actually served exceeds the said period, the person would be entitled to be released.... (para 6).

It is common case that the said rules were made under the Prisons Act, 1894 and that they have statutory force. But, the Prisons Act does not

confer on any authority a power to commute or remit sentences, it provides only for the regulation of prisons and for the treatment of prisoners

confined therein. S.19 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct.

Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. The rules, inter alia provide for three types

of remissions by way of rewards for good conduct namely, (i) ordinary, (ii) special and (iii) State. For the working out of the said remissions, under

R.1419 (c), transportation for life is ordinarily to be taken as 15 years'' actual imprisonment. The rule cannot be construed as a statutory equation

of n years'' actual imprisonment, for transportation for life. The equation is only for a particular purpose, namely for the purpose of remission

system, and not for all purpose....(para 7).

...Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of

Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The rules framed under the Prisons

Act enable such a prisoner to earn remissions--ordinary, special and State--and the said remissions will be given credit towards his term of

imprisonment. For the purpose of working out the remissions, the sentence of transportation for life is ordinarily equated with a definite period, but

it is only for that particular purpose and not for any other, purpose. As the sentence of transportation for life or its prison equivalent, the life

imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time

of his death. That is why the rules provide for a procedure to enable the appropriate Government to remit the sentence under S.401 (old Code) on

a consideration of the relevant factors, including the period of remissions earned. The question of remission is exclusively within the province of the

appropriate Government; and in this case, it is admitted that, though the appropriate Government made certain remissions under S.401 (old Code),

it did not remit entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.

This position has been re-affirmed in Maru Ram and Others Vs. Union of India (UOI) and Others, in the following words:

A possible confusion creeps into this discussion by equating life imprisonment with 20 years'' imprisonment. Reliance is placed for this purpose on

S.55, I.P.C., and on definitions in various Remission Schemes. All that we need say, as clearly pointed oat in Godse is that these equivalents are

meant for the limited objective of computation to help the State exercise its wide powers of total remissions. Even if the remissions earned have

totalled up to 20 years, still the State Government may or may not release the prisoner and until such a release order remitting the remaining part of

the life sentence is passed, the prisoner cannot Claim his liberty. The reason is that life sentence is nothing less than life-long imprisonment.

Therefore, the position in law is that while a sentence of imprisonment for life has to run its course upto the full span of the convict''s life, yet it is

op n to Government to grant remission of sentences. But, the remissions earned by the convict in prison would be of no avail to him unless the

Government choose to give effect to the remissions earned by the convict and order remission of the unexpired portion of the sentence and direct

release of the convict from prison.

The next question that falls for consideration is regarding the manner in which the power of remission vested in Government is to be exercised.

While the petitioners would say that it is not left to the will and pleasure of the Government to grant remissions in an arbitrary or whimsical manner

and that the Government should not act in a discriminatory manner, and furthermore, the Government should give reasons whenever ft refused to

grant remission to a convict eligible, as per rules, for such remission, the stand of the Government is that, notwithstanding a sentence of

imprisonment for life having to run to the full length of the convict''s life, the Government, as a gesture, has prescribed certain norms for review of

the cases of lifers for premature release and, as such, the question of granting remission or not lies entirely within the discretion of the Government,

and they are not bound to give reasons whenever a lifer is refused remission of sentence and consequently, the affected lifer has no right in law to

question the action of the Government in a court. However, as already stated, the learned Advocate General fairly conceded that whatever may

have been said in the counter-affidavits, the real stand of the Government is not a rigid or inflexible one. The question as to how Government

should act in exercise of its powers under S.432 of the Code or R. 310-A of the Rules framed under the Prisons Act, was argued at great length

by Mr. Vanamamalai and Mr. Sankaran, and a number of authorities were cited by them in this behalf. In Chief Settlement Commissioner,

Rehabilitation Department, Punjab and Others, etc. Vs. Om Prakash and Others etc., the Supreme Court pointed out how executive

administration is bound to act within the limits of the power delegated to it by the Legislature and how any administrative or executive action, which

offends the Rules of Law, is liable to judicial scrutiny and review. The relevant passage occurring at page 660, runs as follows:

In this context it is essential to emphasize that under out constitutional system the authority to make the law is vested in the Parliament and the State

Legislatures and other law making bodies and whatever legislative power the executive administration possesses must be derived directly from the

delegation of the legislature and exercised validly only within the limits prescribed. The notion of inherent or autonomous law-making power in the

executive administration is a notion that must be emphatically rejected. As observed by Jackson, J., in a recent American case--Youngstown Sheet

& Tube Co. v. Sawyer 343 U.S. 579, 655. ""With all its defects, delays and inconveniences, men have discovered no technique for long preserving

free government except that the Executive be under the law, and that the law be made by parliamentary deliberations."" In our constitutional system,

the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to

test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if

the aggrieved person brings the appropriate action in the competent court. The rule of law rejects the conception of the Dual State, in which

governmental action is placed in a privileged position of immunity from control by law. Such a notion is foreign to our basic constitutional concept.

In Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, it fell for consideration whether a Corporation which is an instrumentality

or agency of the Government, would constitute an authority within the meaning of Art. 12 of the Constitution and therefore subject to the same

basic obligation to obey the Fundamental Rights as the Government, The Supreme Court answered the question in the affirmative and held as

follows--

We are clearly of the view that where a Corporation is an instrumentality or agency of the Government, it must be held to be an ''authority'' within

the meaning of Art 12, and hence subject to the same basic obligation to obey the Fundamental Rights as the Government.

Cougreve v. Home Office 1076 I.A. 11 E.R. 697 is a case where the plaintiff, who was the owner of a colour television set, sought to thwart the

action of the Government in raising the licence fee for television sets by obtaining a licence on payment of fees at the old rate a few days before 1st

April, 1975 when the new rates were to come into force. Several other television set owners also obtained fresh licences by making payments at

the old rate and thereupon, the Government intervened and the plaintiff was informed that he should pay the additional fee of �.6 or, in the

alternative, his licence period would be restricted to eight months instead of the full period. The plaintiff questioned the action of the Government in

court and the Court held that the demand for payment of �.6 would amount to an unlawful exercise of the Home Secretary''s powers to revoke

or to threaten to revoke the licence as a means of enforcing the demand. In the course of his judgment, Lord Denning, M.R., observed that the

power conferred on the Home Secretary to revoke licences is one which must be exercised in accordance with the law, taking all relevant

considerations into account, omitting irrelevant ones, and not being influenced by any ulterior motives and that where a licensee had done nothing

wrong, the Home Secretary cannot lawfully revoke the licence without offering to refund the licence fee, and not even that except for a good

cause.

Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, is another land-mark case which requires mention. The

International Airport Authority of India invited tenders for putting up and running a Second Class Restaurant and two snack-bars at the

International Airport at Bombay. The qualification prescribed was that the tenderer should be a registered second class hotelier having at least five

years'' experience. One Ramana Shetty did not submit a tender because he did not have the requisite qualification prescribed by the Airport

Authority. Subsequently, on coming to know that the tenderer, to whom the Authority had given the licence, did not also have the qualification

prescribed by the authority, Ramana Shetty filed a writ petition under Art. 226 of the Constitution; His main contention was that the Airport

Authority, being a ''State'' within the meaning of Art. 12 of the Constitution or, in any event, a public Authority, was bound to give effect to the

condition of eligibility set up by it and was not entitled to depart from it at its own sweet will without rational justification. The further contention

was that the departure from the standard or norm of eligibility had the effect of denying equal opportunity, to the writ petitioner and others, of

submitting their tenders and being considered for entering into contract for putting up and running the restaurant and the two snack bars. The writ

petitioner''s contentions did not find favour with the Judges of the Bombay High Court who heard the writ petition and the writ appeal, but on the

matter being taken up to the Supreme Court, the Supreme Court sustained the contention of the writ petitioner and allowed the appeal filed by him

and held as follows:

Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject

to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed

above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise,

and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, bat its action must be in conformity with some

principle which meets the test of reason and relevance.

This rule also flows directly from the doctrine of equality embodied in Art.14. It is now well settled as a result of the decisions of this Court in E.P.

Royappa Vs. State of Tamil Nadu and Another, and Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, that Art.14 strikes at

arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on

some rational and relevant principle which is non discriminatory; it must not be guided by any extraneous or irrelevant consideration, because that

would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of

equality or non-arbitrariness is projected by Art.14 and it must characterise every State action, whether it be under authority of law or in exercise

of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise, with a

third-party, but its action must conform, to some standard or norm which is rational and non-discriminatory....

In S.L. Kapoor Vs. Jagmohan and Others, the legality of an order passed by the Lt. Governor of the Union Territory of Delhi, superseding

new Delhi Municipal Committee, was considered. Rejecting the ground put forward by the Government in support of, the Lt. Governor''s action,

the Court held as follows--

The old distinction between a judicial act and an administrative act has withered away and we have been liberated from the psittacine incantation of

''administrative action.'' Now, from the time of the decision of this Court in State of Orissa v. Dr. (Miss.) Binapani Dei 1967 S.C. 1269 ''even an

administrative order which involves- civil consequence--must be made consistently with the rules of natural justice''. What are civil consequences?

The question was posed and answered by this Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and

Others, Krishna Iyer, J., speaking for the Constitution Bench said (at pp. 308-309);

''But what is a civil consequence, let us ask ourselves, by passing verbal booby-traps? ''Civil consequence'' undoubtedly cover infraction of not

merely properly or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation,

everything that affects a citizen in his civil life inflicts a civil consequence.''

The learned Judge then proceeded to quote from Balck''s Legal Dictionary and to consider the interest of a candidate at a Parliamentary election.

He finally said:

The appellant has a right to have the election conducted not according to humour or nubris but according to law and justice. And so, natural justice

cannot be stumped out on this score. In the region of public law locus standi and person aggrieved, right and interest have a broader import.

A Full Bench of this Court, to which one of us (Natarajan, J ) was a party, hid to consider in The Secretary, Palani Co-operative Sales

Society, Palani and Another Vs. The Presiding Officer, Labour Court, Madurai and Another, the question whether a by law which provided for

suspension by way of punishment would also apply to a case of suspension pending an enquiry and it it would apply, whether an employee placed

under suspension pending an enquiry is entitled to claim subsistence allowance if the suspension order did not provide for payment of subsistence

allowance. The Full Bench answered the reference in the following manner and pointed out how the discretion vested in the Management to grant

subsistence allowance or not had to be exercised according to law and justice. The Full Bench laid the dictum as under:

In the instant case, sub-Cl.(h) extracted above Visualises the power of suspension. In our opinion, ft is not confined to suspension by way of

punishment. It is also applicable to a case of suspension pending an enquiry. Discretion is given in the case of such suspension to allow subsistence

allowance at a rate of One-fourth of substantive pay during the period of, suspension. If no order of sanction has been made, it may appear that

during the period of suspension no remuneration will be permissible. But this discretion coupled, as it is with a benefit, has to be exercised in every

case reasonably and according to law and justice and not whimsically or arbitrarily. It is only for stated reasons that the authority suspending a

member pending an enquiry can deny subsistence allowance to him....

The abovesaid cases set out the law regarding the manner in which the executive powers vested in Government are to be exercised.

We will now turn our attention to the question as to how the powers exercisable by the executive under the Constitution are to be exercised. In

Maru Ram and Others Vs. Union of India (UOI) and Others, While considering the scope and effect of S.433-A of the Code, the Supreme Court

had also to consider the scope and effect of Arts.72 and 161 of the Constitution. After analysing the position, the Supreme Court held that the

President and the Governor (the highest dignitaries in our Constitutional Scheme) can and must act, not on their own judgment, but in accordance

with the aid and advice of the Ministers. The Court then spelt out, at page 2170, how the powers under Arts 72 and 161 are to be exercised:

An issue of deeper import demands our consideration at this stage of the discussion. Wide as the power of pardon, commutation and release

(Arts.72 and 161) is, it cannot run riot; for, no legal power can run unruly like John Gilpin on the house, 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 exerciable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the

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

(para 62)

Then, again, at page 2175, it was held as follows:

Considerations for exercise of power under Arts.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.

(para 72, sub-para (9)).

In the light of the ratio contained in the abovesaid cases, it goes without saying that the power of remission vested in the Government has to be

exercised in a fair, impartial and uniform manner and it is not open to the Government to exercise its power in an arbitrary or whimsical manner. It

further follows that the power should be exercised in an intelligible manner and with reference to the factors relevant for consideration, and not on

the basis of any extraneous factors and considerations which have no bearing to the matter at all.

The next matter which merits our consideration is the second limb of the Government''s contention, viz., that irrespective of the question

whether the Government''s power of granting remission is not absolute, but a fettered one, the fetters being impartiality, uniformity, rationality and

non-arbitrariness the prisoners do not have a vested or inhered right to question the action of the Government in refusing to grant premature

release. The petitioners in all these cases have, no doubt, been sentenced to imprisonment for life by competent courts and have therefore to

undergo imprisonment to the last moment of their lives, unless they are granted remissions by the Government and directed to be released

prematurely. Even so, the petitioners cannot be said to be deprived of all their rights by reason of the conviction awarded to them and by their

incarceration in prison. Except such fundamental rights of theirs, which stand affected by reason of the conviction and sentence they will not be

denuded of their other rights under the Constitution, the demand of which will not run counter to their convictions in any manner. The Supreme

Court has clearly set out this position in D. Bhuvan Mohan Patnaik and Others Vs. State of Andhra Pradesh and Others, The pithy observation of

the Supreme Court is as follows:

Convicts are not, by mere reason of conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the

authority of law, following upon a conviction, to live in a prison-house entails to by its own force, the deprivation of fundamental freedoms like the

right to move freely throughout the territory of India or the right to ''practise'' a profession. A man of profession, would thus stand stripped of his

right to hold consultations while serving out his sentences. But, the Constitution guarantees other freedoms like the right to acquire, hold and

dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right

guaranteed by Art 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by

law.

(para 6)

Moreover, we have also to consider the rights of the prisoners with reference to Art.21 of the Constitution, even in their state of incarceration.

Art.21 reads as follows:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

The Supreme Court had to consider the scope and effect of Art.21 and particularly, the words ""personal liberty"" used therein, in Kharak Singh Vs.

The State of U.P. and Others, . The pronouncement of the Supreme Court on the subject, as found in paragraphs IS and 17 is as under:

The content of Art.21 next calls for examination. Explaining the scope of the words ''Life'' and ''liberty'' which occur in the 5th and 14th

Amendments to the U.S. Constitution reading, ''No person--shall be deprived of life, liberty or property without due process of law, to quote the

material words, on which Art.21 is largely modelled, Field, J. observed;

''By the term ''life'' as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all these

limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting

out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world--By the term liberty, as

used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison.

It is true that in Art. 21, as contrasted with the 4th and 14th Amendments in the U.S. Constitution, the word ''liberty'' is qualified by the word

''personal'' and therefore its content is narrower. But the qualifying adjective has been employed in order to avoid overlapping between those

elements or incidents of ''liberty'' like freedom of speech, or freedom of movement, etc., ""already dealt with in Art.19(1) and the ''liberty''

guaranteed by Arts.21--and particularly in the context of the difference between the permissible restraints or restrictions which might be imposed

by sub-clauses (2) to (6) of the Article on the several species of liberty dealt with in the several clauses of Art.19(1)....

(Para 15)

We shall now proceed with the examination of the width, scope and content of the expression ''personal liberty'' in Art.21. Having regard to the

terms of Art.19(1)(d), we must take it that that expression is used as not to include the right to move about or rather of locomotion. The right to

move about being excluded its narrowest interpretation would be that it comprehends nothing more than freedom from physical restraint or

freedom from confinement within the bounds of a prison; in other words, freedom from arrest and detention, from false imprisonment of wrongful

confinement. We feel unable to hold that the term was intended to bear only this narrow interpretation, but on the other hand, consider that

''personal liberty'' is used in the Article as a compendious term to include within itself all the varieties of rights which go to make up the ''personal

liberties'' of main other than those dealt within the several clauses of Art.19(1). In other words, while Art.19(1) deals with particular species or

attributes of that freedom ''personal liberty'' in Art.21 takes in and comprises the residue. We have already extracted a passage from the judgment

of Field, J., in Munn v. Illinois 1876 94 U.S. P. 113, at 142 where the learned Judge pointed out that ''life'' in the 5th and 14th Amendments of the

U.S. Constitution corresponding to Art.21, means not merely the right to the continuance of a person''s animal existence, but a right to the

possession of each of his organs--his arms and legs. etc. We do not entertain any doubt that the word ''life'' in Art.21 bears the same

signification....

(para 17)

In a later case, viz., Rustom Cavasjee Cooper Vs. Union of India (UOI), the above view of the majority in Kharak Singh Vs. The State of U.P.

and Others, was virtually disapproved and it was held that Art. 19(2) and 21 are not mutually exclusive. Referring to the above-said cases,

Bhagwati, J., has held in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another,

We may point out even at the cost of repetition that this Court has said in so many terms in Rustom Cavasjee Cooper Vs. Union of India (UOI),

that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore, it is not a valid

argument to say that the expression ''personal liberty in Art.21 must be so interpreted as to avoid overlapping between that Article and Art. 19(1).

The expression ''personal liberty'' in Art.21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of

man and some of them had been raised to the status of distinct fundamental rights and given additional protection under Art.19.

These decisions, therefore, make it clear that a life convict does not stand denuded of his fundamental rights except to the extent his right t> form

associations or unions, to move freely throughout the territory of India and to practise any profession or to carry on any occupation, trade or

business is affected. Moreover, his right to personal liberty guaranteed by Art.21 of the Constitution is not to be construed as only a right to lead a

life of animal existence during the term of imprisonment and that he has no right to ask for the grounds on which he is denied premature release

when the Rules make him eligible to obtain such a relief, or to ask for parity of treatment as far as possible in the matter of grant of remission of

sentence when others similarly placed like him are granted such a relief.

The matter can be viewed from another angle also. We have already referred to the decision of the Supreme Court in S.L. Kapoor Vs.

Jagmohan and Others, , and the observation therein that if an administrative order involves civil consequences, then the order has to be in

accordance with the rules of natural justice. ''What is a civil consequence'' has been clarified to mean ''infraction of property rights and personal

rights as well as civil liberties, material deprivations and non-pecuniary damages''. Therefore, on the ground that their civil liberties are affected or

on the ground that material deprivations are caused convicts must be accorded status and recognition to complain against orders of Government

relating to premature release where such orders are not in accordance with law or the principles of natural justice.

In the light of the reasons given above, we cannot accept the contention that the Government being the sole authority to grant remission, the

manner of exercise of its power under the Act and the Rules is not open to judicial scan and scrutiny and, secondly that, in any event, life convicts,

being sentenced to imprisonment for life, have no right or status to insist upon reasons for denial of premature release at a given point of time.

The next question which logically follows for consideration is whether the Government is bound to give reasons when it does not accept the

recommendation of the Advisory Board and refuses to grant remission to a life convict. In R.310-A of the Rules framed under the Prisons Act, the

Government has not prescribed any period after which the case of a lifer is to be put up before the Advisory Board for that body to go into the

question whether remission of sentence and premature release should be recommended or not. In the counter-affidavits, it is stated that the

Government has laid down a procedure that a lifer who has been convicted and sentenced prior to S.433-A came into force on 12th December,

1978, has to undergo actual sentence of ten years excluding any remission. However, the Government, by G.O. Ms. No. 2475, Home

Department, dt. 14th September, 1977, has granted a remission of six months and directed that this period be deducted from the actual period of

imprisonment of ten years. Subsequently, by means of another G.O., the Government has directed that all lifers who undergo vasectomy operation

would be eligible to a deduction of one year by way of special remission from the total of ten years. The resultant position, therefore, is that if a lifer

has not undergone vasectomy operation, his case would not be put up before the Advisory Board before he had actually served 9� years in

prison, and if a lifer has undergone vasectomy operation, his case would not be placed before the Advisory Board before he had actually served

8� years in prison. To that extent, there is uniformity and consistency. We then see that before the cases of lifers are put up before the Advisory

Board, reports are called for from the Probation Officer and the Collector and those reports have to be taken into consideration by the Board

when the lifers'' papers are scrutinised for recommendation or otherwise of remission of sentences. The Advisory Board then makes its

recommendation one way or the other. Thereafter, the Inspector General of Prisons forwards the records of the concerned lifers to Government,

along with his report, for final orders. Under R.310-A(d) of the said Rules, the Government is the final authority to grant remissions of sentences or

not. The Government accepts the recommendation of the Advisory Board in some cases and grants remission of sentences. But, in other cases, it

does not accept the recommendation of the Advisory Board and refuses to grant remissions. In those cases, the Government gives a direction that

the papers may be placed before it for fresh consideration after six months or one year, or two years, as the case may be. It is common ground

that in all cases, i.e., whether remissions are granted or are not granted, the Government does not give any reason at all. While the petitioners

would contend that the Government is bound to give reasons the Government''s stand is that it is not bound to give reasons. The reasons for the

Government saying so is that since it is the sole arbiter in the matter of giving remissions of sentences, it is not bound to give'' reasons. In our

opinion, the stand of the Government cannot be accepted. It is one thing for the Government to say that under the Code and the Prisons Act it is

the sole authority to grant remissions, but it is entirely a different thing to say that because it is the sole authority to grant remissions, it need not give

reasons for the decisions taken and the orders passed by it. The act of granting; remission is, no doubt, an executive act, but it is more quasi-

judicial than administrative in nature and effect. Therefore, in the fitness of things, the Government has to set out the reasons which influenced its

mind for passing an order either granting remission or refusing to grant remission to life convicts. Even if it is to be held that the order of

Government is purely administrative in character, the order should contain reasons'' which would enlighten the mind of anyone, and more so of the

concerned persons, as to what factors were taken into consideration and the reasons which weighed with the Government for granting or not

granting premature release to lifers. Then again, when it is found that the order passed by the Government should not offend the principles of

equality and non-arbitrariness and is subject to judicial scan and review, it goes without saying that the order passed by Government should be

self-revealing and should set out the reasons which formed the basis for its final decision. At this juncture, we have also to point out that when

Government does not grant premature release and directs the papers to be placed before it after a lapse of six months or one year or two years, as

the case may be, the order does not disclose any reason why the papers relating to different convicts are asked to be placed before it at different

points of time. Even in respect of this direction unless the Government discloses its mind, neither the affected person nor the Court would be able

to know why the Government has directed the cases of certain convicts to be placed for consideration at an earlier point of time and the cases of

others at a later point of time.

The learned Advocate-General stated that even if Government has to give reasons for accepting or rejecting the recommendations of the

Advisory Board, the Government need not set out the reasons in the order itself, and it is enough if the Government is able to satisfy the Court, as

and when an order is challenged, that its order is in accordance with law and the principles of natural justice and that it does not suffer from the

vice of arbitrariness. In support of this argument, the learned Advocate-General referred to cases of compulsory retirement, where the order does

cot disclose the reasons for compulsorily retiring an officer and that if such an order is challenged in court, the Government can justify the order by

producing the relevant file before Court and pointing out that there was sufficient material for the Government to pass the impugned order.

The above contention of the Advocate General, though having apparent force, cannot advance matters for the State in any manner, because

the passing of an order of compulsory retirement stands on a different footing. The right of a Government servant to hold office, high or low is

under the pleasure doctrine under Art.310 of the Constitution, namely, that the Government servant holds an office during the pleasure of the

President or the Governor as the case may be. The pleasure doctrine is subject to two well known limitations, viz., that the Government servant

shall not be dismissed or removed from service by an authority subordinate to that by which he was appointed and, secondly, that he shall not be

dismissed or removed or reduced in rank except after an enquiry into the charges clearly levelled against him and affording him a reasonable

opportunity of being heard in respect of the charges. The pleasure doctrine under Art.310, as has been referred to by the Supreme Court in State

of Uttar Pradesh Vs. Chandra Mohan Nigam and Others, ""is in a way unoffending resuscitated with appropriate vigour towards the tail-end of the

career of a Government servant under specific rules in the public interest."" It has further been held that compulsory retirement under the service

rules is not by way of punishment, as understood in the service jurisprudence, however unsavoury it may be otherwise. It has also been pointed out

by the Supreme Court in Tara Singh v. State of Rajasthan, AIR 1977 S.C. 1487 at p. 1491 that the right to be in public employment is a right to

hold it according to rules; that the right to hold employment is therefore defensible according to rules; that when persons complete 25 years of

service and efficiency of such persons is impaired and yet it is desirable not to bring any charge of in efficiency or in competency, the Government

passes orders of such compulsory retirement. The Government servant in such a case does not lose the benefits which a Government servant has

already earned, and the orders of compulsory retirement are made in public interest. Therefore, the rights of Government servants have to be

determined with reference to Arts.310 and 311 of the Constitution and the right is a defeasible one according to Rules. Moreover, compulsory

retirement is not by way of punishment. An order of compulsory retirement is passed in public interest. Such being the case, an order of

compulsory retirement need not set out the reasons on which the order is being passed. On the other hand, we are concerned with the fundamental

rights of the petitioners guaranteed under Arts. 19 and 21 of the Constitution. What is at stake for the petitioners is their personal liberty under

Art.21 and the several distinct fundamental rights set out in Art.19. Hence we are of the view that there is no comparison between an order of

compulsory retirement passed by the Government against one of its employees and an order passed by Government refusing to grant premature

release to a life convict who is eligible for consideration for premature release as per the rules formulated by the Government.

In this context, we may also dispose of the submission made by the Advocate-General that it is not necessary for the Government to give

reasons for refusing to grant premature release to a life convict in the order itself, and it is open to the Government to give its reasons for the order

at a subsequent point of time. The Supreme Court has repelled such a contention in Mohinder Singh v. Chief Election Commissioner, AIR 1975

S.C. 1487 at p. 1491 and has pointed Out that

when a statutory functionary makes an order on certain grounds, the validity must be judged by the reasons so mentioned and cannot be

supplemented by fresh reasons in the shape of affidavits or otherwise; otherwise, an order bad in the beginning may, by the time it comes to court

on account of a challenge, get validated by additional grounds later brought out.

The Pronouncement of the Supreme Court is a complete answer to the contention put forth on behalf of the State. Therefore, we reiterate the

position that the Government has to set out the reasons for its decision one way or the other when it grants or refuses to grant premature release to

life convicts when their cases are placed before it for consideration.

We now come to the question whether the Government should give an opportunity to a life convict, whose case is recommended for

premature release by the Advisory Board, but not accepted by the Government, to make his representation before final orders are passed. The

stand of the Government is that since the life convict does not have a statutory right to ask for premature release at any given point of time and

since an order of premature release is passed by the Government as an act of grace in exercise of its benign powers, the affected prisoner is not

entitled to a right of hearing before the Government declines to accept the recommendations of the Advisory Board and postpones to a later date

the consideration of granting remission to the convict. We are not able to accept the extreme stand taken by the Government in this behalf. It is no

doubt true that the lifers are not entitled under the Constitution or the statute to claim premature release as of right and it is equally true that the

power of granting remission is exclusively vested in the Government. But, even so, when the Government has evolved a system of premature

release, and has framed rules to formulate the modality for implementing the scheme of premature release, the Government cannot be heard to say

that its orders need not be backed by reasons and secondly that a person affected by its order, cannot legally claim a right of representation. The

principles of natural justice to require an opportunity being given to the person concerned to make whatever representations he wants to make

before the Government passes its final order. In this connection, we may only refer to a few cases to show, how the; principle of Audi Alteram

Partem has been extended by courts to a variety of cases.

In A.K. Kraipak and Others Vs. Union of India (UOI) and Others, the Supreme Court quoted with approval a passage in the judgment of

Lord Parker C.J., in In re: H.K. (an Infant) 1967 2 Q.B. 617. The relevant passage is as under:

But at the same time, I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the

immigrant an opportunity of satisfying him of the matters in the sub-section, and for that purpose let the immigrant know what his immediate

impression is so that the immigrant can disabuse him. That is not as I see ft, a question of acting or being required to act judicially, but of being

required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor'' merely

bringing one''s mind to bear on the problem, but acting fairly, and to the limited extent that the circumstances of any particular case allow, and

within the legislative framework under Which the administrator is working only to that limited extent do the so called rules of natural justice apply,

which in a case such as this, is merely a duty to act fairly. I appreciate that in say thing that it may be said that one is going further than is permitted

on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to

whether there is or is not a duty to act judicially or quasi-judicially.

After extracting the passage, the Supreme; Court added its own observations as follows:

The aim of the rules of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice. These rules can operate only in

areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it.... Till very recently, it was

the opinion of the courts that unless the authority concerned was required by the taw under which it functioned to act judicially there was no room

for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to

prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries. Oftentimes it is not easy to

draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are

now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi judicial enquiries as well as administrative

enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry.

These passage were quoted in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, . It was further held therein as follows:

This view was reiterated and re-affirmed in a subsequent decision of this Court in D.F.O. South Kheri v. Ram Sanehi Sing. The law must

therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural

justice must be held to be applicable.

In S.L. Kopoor v. Jagmohan 1971 3 S.C.C. 864 = AIR 1973 S.C. 205 the Supreme Court held that the supersession of the New Delhi

Municipal Committee by the Lt. Governor in exercise of the powers conferred on him under the Punjab Municipal Act, 1911, without issuing show

cause notice to the Municipal Council, deserved to be struck down as it was violative of the principles of natural justice, and observed:

The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice hid been

observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural

justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.

In yet another case, Shyam Sunder Vs. State of Rajasthan, an appeal pending in Jodhpur Bench of the High Court of Rajas than was transferred to

the Jaipur Bench of the same High Court without notice to the accused/ appellant and was dismissed by the Jaipur Bench without hearing the

appellant. It was held that though reasons were given for dismissing the appeal, the possibility of the High Court being persuaded to take a different

view and allow the appeal if the accused/appellant had been served notice and heard, cannot be ruled out and therefore, the appeal should be

decided afresh after hearing the appellant.

Having regard to the ratio contained in these cases it follows that even if the orders of Government refusing to accept the recommendation of

the Advisory Board and granting remission is considered to be administrative in nature, yet the concerned prisoners are entitled to notice of the

proposed action of the Government so that they may have an opportunity of putting forth whatever representations they want to make against the

proposed view taken by the Government. We are therefore of opinion that whenever the Government is of the view that the Advisory Board''s

recommendation for premature release is not worthy of acceptance and that the case should be taken up for consideration at a later point of time,

the Government should give notice of its view to the affected prisoners and afford them an opportunity to make whatever representations they want

to make and thereafter pass the final orders. It may be that in most of the cases, the prisoners may not be able to make successful representations

so as to make the Government revise its stand. But, nonetheless, the possibility of a few of them making effective representations so as to make the

Government change its view, cannot be ruled out. We are therefore of opinion that the Government must observe the rule of audi alteram partem

before refusing to grant remission of sentence to all those life convicts whose cases are placed before it for consideration.

Incidentally, it has to be pointed out that when the Government does not accept the recommendation of the Advisory Board and gives

directions that the papers may be put up for consideration after a period of six months or one year or two years, as the case may be, the

Government does not give any reason for directing the papers to be resubmitted to it at different points of time. Even here, the argument of the

learned Advocate-General is that the Government fixes different points of time for resubmission of papers after taking into consideration the facts

of each case. We are not persuaded by this argument because in the absence of reasons, it is not possible to say what are the relevant factors

which were taken into consideration by the Government before giving directions that the papers relating to the different points of time, i.e., six

months hence, or one year hence, or two years hence. Therefore, even here it is not only desirable but also expedient that the Government gives its

reasons for directing the resubmission of papers after varying intervals of time.

Byway of a general contention, the learned Advocate-General submitted that the broad policy of Government is to grant or refuse to grant

remission, after taking into consideration the unexpired portion of the sentence and further stated that if the Government was able to show that the

orders of rejection had nexus to certain relevant factors then the orders passed by the Government cannot be classified as arbitrary or whimsical.

In support of the abovesaid contention, the Advocate-General placed before us the files relating to two prisoners, wherein it had been noted that

having regard to the length of the unexpired portion of sentence, the Government was not inclined to accept the recommendation of the Advisory

Board and grant premature release to the prisoners in question.

This proposition was vehemently refuted by Mr. Vanamamalai and the counsel stated that, far from the Government''s orders being passed on

uniform and intelligible criteria, they were highly divergent and there is overwhelming material to show that the Government has not been following a

consistent or clear-cut policy, but on the other hand, its orders were manifestly arbitrary. To prove this point Mr. Vanamamalai submitted a chart

wherein the particulars relating to the petitioners herein have been set out. We may refer to the cases of a few petitioners, who have put in more

than 14 years of actual imprisonment and also the periods of remission earned by them, but who have not been ordered to be released

prematurely. They are:

No. of Name of PrisonerActual Remission RecommendationDirection

Writ & Prison in whichperiod by Adv. Bd. for re-

Petition detained of submission

Prison

sentence

8559/82 Chelliah alias Y. M.D. Y. M D. Recommended To submit

Cbellakannu-- for premature two

Tiruchy release Not

recommended

15 4 8 11 years

hence

8566/82 Solayappan- 14 10 6 10 ...

Palayamkottai

10324/82Nachiammal- 16 ... Not known Not known.

Vellore

10333/82Subbammal- 15 ... -do- -do-

Vellore

9229/82 Ondimuthu- 15 2 8 8 14 14 Recommended

Cuddalore

Y. M.D. Y. M. D.

7943/82 Chelliah- 9 0 0 3 9 0 21-10-

Palayamkottai 1982

8201 /82Cruz Matha "" 10 9 7 6 1 4 20-11-

1982

8203/82 Papanasam "" 12 7 0 0 0 162 20-11-

1982

8561/82 Manthiram "" 12 0 0 5 3 9 20-11-

1982

8565/82 Sudalaiman "" 12 7 0 5 8 172 20- 9-

1982

9982/82 Pauldurai "" 13 10 15 4 10 0 22-12-

1982**

9989/82 Munda Thevar "" 16 6 20 6 11 16 16-11-

1982**

In all these cases, the Government have not ordered premature release for the relevant convicts in spite of their having put in more than 14 years of

actual sentence. We will now set out some of the other cases, where premature release has been ordered for prisoners who have served prison

sentence for lesser number of years, or where premature release has been ordered though not recommended by the Advisory Board.

In all these cases, the Government have not ordered premature release for the relevant convicts in spite of their having put in more than 14 years of

actual sentence. We will now set out some of the other cases, where premature release has been ordered for prisoners who have served prison

sentence for lesser number of years, or where premature release has been ordered though not recommended by the Advisory Board.

Number of Name of the Actual Remissions When

Writ Petn. Prisoner and the period released

Prison of

prison

sentence

Y. M.D. Y. M.D.

7943/82 Chelliah- 9 0 0 3 9 0 21-10-

Palayamkottai 1982

8201 /82 Cruz Matha "" 10 9 7 6 1 4 20-11-

1982

8203/82 Papanasam "" 12 7 0 0 0 16220-11-

1982

8561/82 Manthiram "" 12 0 0 5 3 9 20-11-

1982

8565/82 Sudalaiman "" 12 7 0 5 8 17220- 9-1982

9982/82 Pauldurai "" 13 1015 4 100 22-12-

1982**

9989/82 Munda Thevar "" 16 6 20 6 1116 16-11-

1982**

Released even though the Advisory Board has not recommended the case for premature release.

From this it may be seen that the statement made on behalf of the State that the Government''s acceptance or rejection of a convict''s case for

premature release is generally linked to the unexpired portion of the sentence of the prisoner concerned, cannot be accepted, because some

persons who have served longer periods or sentences in prison and who have earned more remissions, have not been granted premature release,

while some others, who have served lesser periods of sentence and earned lesser periods of remission, have been ordered to be released

prematurely. Nevertheless, the orders passed by the Government rejecting the cases of the former set of prisoners and accepting the cases of the

latter set of prisoners do not disclose the lessons which had influenced the mind of the Government to pass the different types of orders. The

resultant position that emerges is that the orders by themselves do not reflect any consistent policy taken by the Government. Secondly, the orders

do not disclose the reasons, which have weighed with the Government for granting remission in the case of others.

The further argument of the Advocate, General was that even if the Government had taken irrelevant or extraneous factors into consideration

and ordered premature release of a few life convicts here and there, that will not confer a right on the other life convicts to seek parity of treatment

and automatic grant of release orders, because the principle of equality before law does not mean equality in illegality. To fortify this contention, the

learned Advocate General relied upon a Bench decision of this Court in A.C. Paul v. Tax Recovery Officer, Tirunelveli and another, W.P. No.

359/75-Order, dated Sep. 20, 1977-- 1977 T.L.N.J. 463 where an assessee contended that a circular issued by the Income tax Department

regarding concession being shown to assessees having income in Pakistan, which cannot be brought into India, should also be applied to him in

respect of his income from his business in Ceylon. He further alleged that if parity of treatment was not shown, there will be violation of Art. 14.

The Bench observed that in as much as the circular issued by the Central Board of Direct Taxes was not in conformity with the provisions of the

income tax Act, it was not open to the assessee concerned to contend that there must be equality of treatment in the implementation of an illegal

circular. We do not think that the proposition put forward by the learned Advocate General can have relevance or application to the cases of the

petitioners before us. It is not the contention of the petitioners that the order of premature release passed by the Government in respect certain

prisoners is illegal, but no nevertheless they are also entitled to similarity of treatment. On the other hand, their contention is that when one class of

prisoners eligible for premature release should have been granted that concession, they are also entitled to similar treatment and if they are to be

deprived of such treatment, the Government should give reasons for taking a different view of the matter and they should be informed of those

reasons and given an opportunity to put forth their representations. Hence, we are unable to concede the argument of the Advocate General that

even if the Government had failed Co observe a uniform standard, the petitioners cannot make a point of it and seek intervention of court.

Thus, on a consideration of the writ petitions, in their entire gamut, we reach the following conclusions:

(1) Life sentence means life-long imprisonment and it is a sentence for the whole of the remaining period of the convicted person''s natural life.

(2) Nevertheless, the State have powers under S.432 of the Crl. P.C. to remit the whole or any part of the sentence.

(3) Over and above the powers conferred by S.432 of the Code, the Governor acting on the advice of the Council of Ministers of the State, has

got powers under Art. 161 of the Constitution of India to grant remission of sentence.

(4) Under S.59 of the Prisons Act, the Government is empowered to make rules, which are consistent with the Act and as per sub-S (5) of that

Section, the Government is empowered to make rules for the award of marks and for shortening of sentence.

(5) In the Rules framed under the Prisons Act, the Government have given the modality as to how the Advisory Board should be constituted and

how it should function and how remissions are to be granted for the good conduct of the prisoners.

(6) As per R.310(a) the sentence of all prisoners, who are sentenced to imprisonment for life for more than 20 years of imprisonment in the

aggregate, shall for the purpose of the Rule, be deemed to be sentence of imprisonment for 20 years. However, this, would not mean that when a

life convict serves a sentence of 20 years imprisonment in prison, either inclusive or exclusive of remission, he will automatically be entitled to an

order of premature release. Unless the Government specifically grants remission of sentence and orders release prematurely, a life convict cannot

ask for release on the ground that he had put in 20 years of sentence in jail with or without remissions.

(7) As per the present procedure prescribed by the Tamil Nadu Government, the lifers'' cases can be put up before the Advisory Board for its

recommendation for premature release, only if he has put in 8� years of actual sentence in prison if he has undergone vasectomy operation or

9� years of actual sentence in prison if he has not undergone vasectomy operation.

(8) Before considering the case of a lifer, the Advisory Board has to obtain the report from the District Collector and the Probation Officer and

then make its recommendations to the Government. The present Rules do not contain any guidelines for the Advisory Board to make its

recommendations. We would therefore suggest that certain guidelines be prescribed for the Advisory Board to follow in the matter of

recommending premature release to life convicts. While making its recommendation, the Advisory Board may be asked to set out its reasons for

recommending or not recommending a lifer''s case for premature release.

(9) After the Advisory Board gives its report, the papers are forwarded to the Government along with the report of the Inspector General of

Prisons for its decision of the matter. The Government is not bound to accept the recommendations of the Advisory Board. Hence, it is open to the

Government to refuse to grant premature release to a lifer even though his case has been recommended by the Advisory Board and, conversely, to

grant (sic) remission by premature release to a lifer whose case has not been recommended by the Advisory Board.

(10) The Rules do not prescribe any guidelines as to how and when the Government should grant premature release and when it should not. We

would therefore suggest that certain broad guidelines be formulated to enable the Government to decide favourably or otherwise the cases of

convicts placed before it for remission of sentences.

(11) The orders of Government either granting or not granting remission should set out the reasons, which had weighed with the Government in

passing the order in question. Similarly, whenever the Government directs that a case should be placed for re-consideration after the lapse of more

than six months, viz. one year or two years, as the case may be, the Government should give reasons why it should be put up for consideration

after the prescribed period of time.

(12) If the Government is not inclined to grant remission to life convict, whose case is placed for consideration, the Government should afford an

opportunity to the affected convict to make his representations, if any, in support of his claim for premature release.

(13) Though the Government is the exclusive authority to grant remissions, yet its orders are liable to be challenged in a court of law, if the order is

vitiated by the vice of arbitrariness or discrimination or if it had been passed on unintelligible grounds or with reference to extraneous or irrelevant

materials.

(14) Every person, who has been convicted by the sentencing court before December, 18 1978, shall be entitled to the benefits accruing to him

from the Remission Scheme or Short Sentencing Project as if S.433-A did not stand in his way. Even in those cases, where the trial court acquits,

but the higher Court conviction is after S.433-A came into force, it must be held that the appellate Court has exercised its power in the place of the

original court and therefore, the appellate conviction will relate back to the date of the trial court''s verdict and substitute it and consequently, even

in those cases, the convicts will be entitled to the benefit of the remission system prevailing prior to the coming into force of S 433-A of the Code.

Having set out our conclusion as, we must also add a note of caution. In the matter of granting remission of sentences to life convicts to

facilitate their premature release, there cannot be a dogmatic rule or a doctrinaire approach. Several factors have to be taken into consideration

before Government grants premature release to life convicts. Firstly, there should be subjective assessment, if necessary with the help of

psychologists, to find out if the convict has undergone a change of heart due to feelings of remorse for his action and whether he is suited to join the

mainstream of life in his village or town. Secondly, it should be found out whether his family members and other relations are prepared to take him

back in their fold and resume their ties of relationship, snapped for long during his period of incarceration, with him. It may happen in some cases,

as for example in a case where the convict has murdered his wife that the children may not be prepared to forgive him and agree to look after him.

Thirdly, it has to be ascertained how the convict will be able to earn his livelihood if he is granted premature release, because, as ex-convict, it will

be very difficult for him to get employment anywhere. Therefore, unless he has got lands to cultivate or a profession to practise or is given food and

shelter by his relations, he may feel more despondent and frustrated in his state of freedom than what he felt when he was inside prison. Fourthly,

the likely reaction of the relations of the victim of the crime must also be found out to see whether they would react violently if the convict is granted

premature release. If they are militant, the danger of those persons doing harm to the convict cannot be ruled out. Fifthly, if the murder committed

by the convict was on account of a faction or on account of communal or caste feelings, it must be ensured that the causes of friction which led to

the commission of the offence are no longer present. As these factors are likely to vary for each convict, the persons championing the cause of life

convicts cannot insist upon the Government following a rule of thumb in granting premature release to life convicts.

We now come to the end of the judgment, where we have to decide the relief to be granted to the petitioners in the light of our Bindings and

conclusions. In short, the question is whether the petitioners are entitled to the issue of the writ of habeas corpus prayed for by them. The answer

has to be in the negative, because the life sentence awarded to the petitioners has to run its full course unless the Government grants remission of

sentence in exercise of its powers. Even so, when the Government has not given reasons for its refusal to grant remissions to the petitioners, and

when the orders, by themselves, do not reflect any settled policy of Government, the proper course to be taken by us is to call upon the

Government to consider afresh the cases of the petitioners for grant of premature release and pass orders in accordance with the findings rendered

by us in this judgment. In such of those cases where the Government is not inclined to grant premature release, the Government should not only set

out its reasons, but also give opportunity to the affected prisoners to make their representations, if any, before passing final orders. Even in those

cases where the Government grants premature release, the reasons for the decision may be set out, so that the Government may not be accused of

having practised discrimination or being influenced by extraneous factors. With these directions, all the writ petitions will stand dismissed. It is,

however, brought to our notice that W.P. Nos. 7943, 8201, 8203, 8577, 8561, 8565, 9982 and 9989 of 1982 have become infructuous as the

petitioners therein have since been released by Government. Hence those petitions will stand dismissed as infructuous.

We would be failing in our duty if we do not place on record our appreciation of the valuable services rendered by Messrs. N.T. Vanamamalai

and K.V. Sankaran, Mrs. Aruna Jagadeesan and Mr. Shanmugasundaram, to the petitioners by appearing for them at the request of the Legal Aid

Society and for the excellent preparation and presentation of the case by Messrs. N.T. Vanamamalai and K.V. Sankaran of behalf of the

petitioners and by the learned Advocate General on behalf of the State. Their lucid analysis and masterly presentation of the case have been of

immense help to us in rendering this judgment.