The Madras HC’s recent decision saying it can’t go into the sufficiency of reasons behind the Tamil Nadu Governor’s rejection of a State Level Committee’s recommendation to prematurely release a life convict on the ground of good conduct in prison, is flawed.
ON March 15, the Madras High Court refused to interfere with a Government Order issued in July, 2019, rejecting the State Level Committee’s recommendation for the premature release of John David, the son of the petitioner, in the case of Dr Esther vs. State of Tamil Nadu & Ors.
Convicted by a trial court in 1998 and confirmed guilty by the Supreme Court in 2011 for the murder of a first year student of medicine at Annamalai University in 1997, David has been undergoing imprisonment for life for offences under Sections 364 (kidnapping or abducting in order to murder) and 302 (punishment for murder) of the Indian Penal Code. His release was recommended on the basis of the Conduct Certificate issued by the Superintendent of Prisons which recorded his conduct as “sincere” and “obedient” while showing appreciation for his work teaching other inmates English and Computer Science. However, the Tamil Nadu government rejected the State Level Committee’s recommendation by considering “the cruel nature of the offence committed by him” and that he was involved in a “brutal murder/heinous crime”. The State Level Committee comprises the Inspector General of Prisons and the Deputy Inspector General of Prisons (Headquarters).
Article 161 of the Constitution of India empowers the Governor of a state with the discretion 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.” In this regard, the high court noted that the state government and Governor are therefore “not bound by the recommendations of the State Level Committee as the exercise of power for premature release of a convict prisoner … is under Article 161 of the Constitution of India.”
The High Court’s reasoning is flawed not only because it is based on a misreading of the Supreme Court’s judgement in the Epuru Sudhakar case but also because it pays no deference to the Indian criminal justice system’s aspiration towards a more rehabilitative and reformative system.
Quoting from the Supreme Court’s judgment in The Home Secretary (Prison) & Ors. vs. H. Nilofer Nisha (2020), the high court opined that the power under Article 161 is a “discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations.” In effect, the high court was called to determine the “sufficiency” or “reasonability” of the reasons for refusal of premature release in the impugned order. While citing the Supreme Court’s decision on a similar issue in Epuru Sudhakar & Anr. vs. State of Andhra Pradesh & Ors. (2006), the high court endorsed the view that “…The President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself.” This led the Court to conclude that it could not examine the sufficiency of the reasons for the rejection of the State Level Committee’s recommendation.
It may be argued, however, that the High Court’s reasoning is flawed not only because it is based on a misreading of the Supreme Court’s judgement in Epuru Sudhakar but also because it pays no deference to the Indian criminal justice system’s aspiration towards a more rehabilitative and reformative system. In Epuru Sudhakar, a two-judge bench of the Supreme Court made it amply clear that the “rationale” of the power of pardon is “the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” Furthermore, Justice Arijit Pasayat noted that while the Governor’s power is their prerogative, “acts of pardon are administered by the executive branch of the government in the interests of society and the discipline, education, and reformation of the person convicted.” It was emphasized that “it is fairly well settled that the exercise or non-exercise of power of pardon power by the President or Governor, as the case may be, is not immune from judicial review. Limited Judicial review is available in certain cases.” In addition, courts have repeatedly held that public power, including power conferred by the Constitution, may not be exercised arbitrarily or without sufficient reason.
The heinous nature of David’s crime is completely extraneous to reasons for premature release, which should instead be founded on the convict’s display of remorse, ability to integrate into society, behaviour in jail and while on parole, among other similar situated considerations. To reject premature release on basis of the former is to afford no space for reformation, rehabilitation, or reintegration to convicts in Indian jails.
In this author’s opinion, the heinous nature of David’s crime is completely extraneous to reasons for premature release, which should instead be founded on the convict’s display of remorse, ability to integrate into society, behaviour in jail and while on parole, among other similar situated considerations. To reject premature release on basis of the former is to afford no space for reformation, rehabilitation, or reintegration to convicts in Indian jails. In fact, recent interviews with convicts released prematurely from Tihar Jail show that the process for release is even otherwise “complex” and involves “navigating a web of procedures designed to set them up for failure.” An article published on this site reviews reasons for overcrowding in Indian jails, furnishing data which shows that three out of every four inmates in India’s prisons are undertrial inmates, and arguing that ‘bail, not jail’ must be the norm, not the exception.
While the aforesaid is certainly true, we must also turn our attention to convicted prisoners such as John David, who despite having served over a decade of their youth in jail with good behaviour, are given no chance of reform or rehabilitation.