A Convicted Prisoner Has No Fundamental Or Statutory Right To Be Released Prematurely: Madras High Court

The bench of Justice P.N Prakash and Justice A. A Nakkiran observed that once material is shown to exist, the Governor is the sole judge of the sufficiency of facts and such sufficiency of facts is beyond the ken of judicial review under Article 226.

The court also opined that while exercising the power under Article 161, the interest of the society at large and the family of the victims should also be considered. The court also referred to the concurring view taken by Justice Fazal Ali in the judgment of Maru Ram v. Union of India (1981) which read as under:

"79. The question, therefore, is -- should the country take the risk of innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself. Valmikis are not born everyday and to expect that our present generation, with the prevailing social and economic environment, would produce Valmikis day after day is to hope for the impossible."

Brief Facts:

In the present case, Hariharan was convicted for the Kidnap and murder of one M.K Balan, former AIADMK MLA. Hariharan was convicted under Section 120B, Section 302, Section 365, Section 387, Section 364, and Section 347 read with Section 109 of IPC. Apart from that, he was also convicted for the kidnap and murder of one Jayakumar where he was charged with Section 302 and Section 364 of IPC. Both these sentences were to run concurrently.

While so, to commemorate the Birth Centenary of Dr. M.G. Ramachandran, the State issued G.O 64 fixing specific eligibility criteria for consideration of the cases of convict prisoners for premature release by the Governor under Article 161 of the Constitution of India. The cases of those convicts who satisfied the criteria as of 25.02.2018, were to be considered by two Committees viz., District Level Committee and State Level Committee whose recommendations were sent to the Governor via the Cabinet. The Governor, based on the aid and advice of the Cabinet ordered the release of 1,650 convict prisoners.

As Hariharan was not prematurely released, his mother, the petitioner gave a representation and finding no response filed a writ petition seeking directions to the State to consider the same. The writ was allowed and State was directed to consider the same within three months. Based on the above direction, the State considered the representation and rejected the same. Aggrieved by the same, the present petition is filed.

Mr. G Ravikumar appearing for the petitioner submitted that another convict named Samikannu, who was similarly placed was prematurely released. Thus, Hariharan's non-release violates Articles 14 and 21 of the Constitution of India.

Mr. Hasan Mohamed Jinnah appearing for the State submitted that Samikunnu was not similarly placed with Hariharan as he was not awarded life imprisonment under Section 120-B.

Court's observations

The court analyzed the impugned order rejecting the representation. In the impugned order, the State had observed that "He was convicted in multiple murders of heinous nature involving criminal conspiracy and was also involved in various forgery incidents. Therefore, the point of reformation and whether his conduct will be adorable to the society on his release was found questionable. Moreover his prison behaviour is not satisfactory as required under para 5(II)(B)(2) in G.O.Ms.No.64, Home (Prison-IV) Department, dated 01.02.2018 due to violations of prison rules by him prior to the crucial date for consideration of his premature release".

The court was satisfied that the plea of Samikunnu and Hariharan being similarly placed was unfounded and as such it was as if asking the court to scale the heights of perversity by treating unequals equally. Even assuming that Samikunnu was wrongly released, it would not mean that Hariharan could seek the same as negative equality is alien to Constitutional Law. For this reliance was placed on the judgment of the Apex Court in R.Muthukumar and Others Vs. Chairman and Managing Director, TANGEDCO and Others (2022).

The court also noted the fact that Hariharan was involved in certain prison offenses and his behavior in prison was not satisfactory which was one of the eligibility criteria. Thus, the plea of discrimination and arbitrariness was without any substance.

Judicial Review of Pardoning Power

The court also discussed the judgment of Sikkander v. State (2021), in which the Madras High Court had already examined the scope of judicial review of an order rejecting the case of a convicted prisoner under the above G.O. In that case, the court had discussed that the judicial function ends with the pronouncement of sentence and carrying out the sentence was the duty of the executive. The remission of a sentence merely abridges the execution of the sentence and does not alter or wipe out the judgment of conviction and sentence.

However, the court opined that the power to grant remission under Article 72 and Article 161 was not beyond Judicial scrutiny. Reliance was placed on the judgment of the Apex Court in Epuru Sudhakar v. State of Andhra Pradesh (2006) where the Supreme Court had held that judicial review of an order under Article 72/161 of the Constitution was permissible on the following grounds:

(a) that the order has been passed without application of mind;

(b) that the order is mala fide;

(c) that the order has been passed on extraneous or wholly irrelevant considerations;

(d) that relevant materials have been kept out of consideration;

(e) that the order suffers from arbitrariness.

In the present case, the court had examined the impugned order on the above law and found no ground that warranted interference under Article 226 of the Constituion.