26. In Mahender Singh (supra), this Court as referred to hereinabove held that the policy decision applicable in such cases would be which was prevailing at the time of his conviction. This conclusion was arrived on the following ground:
“38. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder.”
27. Nevertheless, we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the Executive through a Constitutional mandate to ensure that some public purpose may require fulfillment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the Executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of such power under Article 161 of the Constitution or under Section 433-A Cr. P.C. may have a different flavour in the statutory provisions, as short sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself.
28. In Epuru Sudhakar & Another v. Govt. of A.P. & Ors. AIR 2006 SC 3385 this Court held that reasons had to be indicated while exercising power under Articles 72/161. It was further observed (per Kapadia, J) in his concurring opinion: “Pardons, reprieves and remissions are manifestation of the exercise of prerogative power. These are not acts of grace. They are a part of Constitutional scheme. When a pardon is granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment has fixed…….. Exercise of Executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty……. Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an Executive action that mitigates or sets aside the punishment for a crime …….. The power under Article 72 as also under Article 161 of the Constitution is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case.”
29. There is no dispute to the settled legal proposition that the power exercised under Articles 72/161 could be the subject matter of limited judicial review. (vide Kehar Singh (supra); Ashok Kumar (supra); Swaran Singh v. State of U.P. AIR 1998 SC 2026; Satpal & Anr. v. State of Haryana & Ors. AIR 2000 SC 1702; and Bikas Chatterjee v. Union of India (2004) 7 SCC 634). In Epuru Sudhakar (supra) this Court held that the orders under Articles 72/161 could be challenged 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.
30. The power of clemency that has been extended is contained in Articles 72 and 161 of the Constitution. This matter relates to the State of Haryana. The Governor of Haryana may exercise the clemency power. Article 161 of the Constitution enables the Governor of a State “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”
31. Sections 54 and 55 IPC provide for punishment. However, the provisions of Sections 432 and 433-A Cr.P.C., relate to the present controversy. Section 432(1) Cr.P.C. empowers the State Government to suspend or remit sentences of any person sentenced to punishment for an offence, at any time, without conditions or upon any conditions that 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. Section 433-A Cr.P.C. imposes restriction on powers of remission or commutation where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by law or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least fourteen years of imprisonment.
32. Pardon is one of the many prerogatives which have been recognised since time immemorial as being vested in the sovereign, whoever the sovereignty might be. Whether the sovereign happened to be an absolute monarch or a popular republic or a constitutional king or queen, Sovereignty has always been associated with the source of power — the power to appoint or dismiss public servants, the power to declare war and conclude peace, the power to legislate and the power to adjudicate upon all kinds of disputes etc. The rule of law, in contradiction to the rule of man, includes within its wide connotation the absence of arbitrary power, submission to the ordinary law of the land, and the equal protection of the laws. As a result of the historical process aforesaid, the absolute and arbitrary power of the monarch came to be canalised into three distinct wings of the Government, (Vide K.M. Nanavati v. State of Bombay AIR 1961 SC 112).
33. Articles 72 and 161 of the Constitution provide for a residuary sovereign power, thus, there can be nothing to debar the concerned authority to exercise such power, even after rejection of one clemency petition, if the changed circumstances so warrant. (Vide G. Krishta Goud & J. Bhoomaiah v. State of Andhra Pradesh & Ors. (1976) 1 SCC 157)
34. In Regina v. The Secretary of State for the Home Department (1996) EWCA Civ 555, the question came for consideration, before the Court that if the short-sentencing policy is totally inflexible, whether it amounts to transgression on the clemency power of the State which is understood as unfettered? The court considered the issue at length and came to the conclusion as under: “…… the policy must not be so rigid that it does not allow for the exceptional case which requires a departure from the policy, otherwise it could result in fettering of the discretion which would be unlawful…. It is inconsistent with the very flexibility which must have been intended by the Parliament in giving such a wide and untrammeled discretion to the Home Secretary……Approximately 90 years ago an enlightened Parliament recognised that a flexible sentence of detention is what is required in these cases with a very wide discretion being given to the person Parliament thought best suited to oversee that discretion so that the most appropriate decision as to release could be taken in the public interest. The subsequent statutes have not altered the nature of the discretion.” (Emphasis added).
Thus, it was held therein that the clemency power remains unfettered and in exceptional circumstances, variation from the policy is permissible.
35. In view of the above, it is evident that the clemency power of the Executive is absolute and remains unfettered for the reason that the provisions contained under Article 72 or 161 of the Constitution cannot be restricted by the provisions of Sections 432, 433 and 433-A Cr. P.C. though the Authority has to meet the requirements referred to hereinabove while exercising the clemency power. To say that clemency power under Articles 72/161 of the Constitution cannot be exercised by the President or the Governor, as the case may be, before a convict completes the incarceration period provided in the short-sentencing policy, even in an exceptional case, would be mutually inconsistent with the theory that clemency power is unfettered. The Constitution Bench of this Court in Maru Ram (supra) clarified that not only the provisions of Section 433-A Cr. P.C. would apply prospectively but any scheme for short sentencing framed by the State would also apply prospectively. Such a view is in conformity with the provisions of Articles 20 (1) and 21 of the Constitution. The expectancy of period of incarceration is determined soon after the conviction on the basis of the applicable laws and the established practices of the State. When a short sentencing scheme is referable to Article 161 of the Constitution, it cannot be held that the said scheme cannot be pressed in service. Even if, a life convict does not satisfy the requirement of remission rules/short sentencing schemes, there can be no prohibition for the President or the Governor of the State, as the case may be, to exercise the power of clemency under the provisions of Article 72 and 161 of the Constitution. Right of the convict is limited to the extent that his case be considered in accordance with the relevant rules etc., he cannot claim pre-mature release as a matter of right.
36. Two contrary views have always prevailed on the issue of purpose of criminal justice and punishment. The punishment, if taken to be remedial and for the benefit of the convict, remission should be granted. If sentence is taken purely punitive in public interest to vindicate the authority of law and to deter others, it should not be granted. In Salmond on Jurisprudence, 12th Edition by P.J. Fitzgerald, the author in Chapter 15 dealt with the purpose of criminal justice/punishment as under :- “Deterrence acts on the motives of the offender, actual or potential; disablement consists primarily in physical restraint. Reformation, by contrast, seeks to bring about a change in the offender’s character itself so as to reclaim him as a useful member of society. Whereas deterrence looks primarily at the potential criminal outside the dock, reformation aims at the actual offender before the bench. In this century increasing weight has been attached to this aspect. Less frequent use of imprisonment, the abandonment of short sentences, the attempt to use prison as a training rather than a pure punishment, and the greater employment of probation, parole and suspended sentences are evidence of this general trend. At the same time, there has been growing concern to investigate the causes of crime and the effects of penal treatment……... The reformative element must not be overlooked but it must not be allowed to assume undue prominence. How much prominence it may be allowed, is a question of time, place and circumstance.”
R.M.V.Dias, in his book Jurisprudence (Fifth Edition- 1985) observed as under :- “The easing of laws and penalties on anti-social conduct may conceivably result in less freedom and safety for the law-abiding. As Dietze puts it: ‘Just as the despotio variant of democracy all too often has jeopardized human rights, its permissive variant threatens these rights by exposing citizens to the crimes of their fellowmen……… ………. The more law-abiding people lose confidence in the law and those in authority to protect them, the more will they be driven to the alternative of taking matters into their own hands, the perils of which unthinkable and are nearer than some liberty-minded philanthropists seem inclined to allow……”
Legal maxim, “Veniae facilitas incentivum est delinquendi”, is a caveat to the exercise of clemency powers, as it means - “Facility of pardon is an incentive to crime.” It may also prove to be a “grand farce”, if granted arbitrarily, without any justification, to “privileged class deviants”. Thus, no convict should be a “favoured recipient” of clemency.
37. Liberty is one of the most precious and cherished possessions of a human being and he would resist forcefully any attempt to diminish it. Similarly, rehabilitation and social reconstruction of life convict, as objective of punishment become of paramount importance in a welfare state. “Society without crime is a utopian theory”. The State has to achieve the goal of protecting the society from convict and also to rehabilitate the offender. There is a very real risk of revenge attack upon the convict from others. Punishment enables the convict to expiate his crime and assist his rehabilitation. The Remission policy manifests a process of reshaping a person who, under certain circumstances, has indulged in criminal activity and is required to be rehabilitated. Objectives of the punishment are wholly or predominantly reformative and preventive. The basic principle of punishment that “guilty must pay for his crime” should not be extended to the extent that punishment becomes brutal. The matter is required to be examined keeping in view modern reformative concept of punishment. The concept of “Savage Justice” is not to be applied at all. The sentence softening schemes have to be viewed from a more human and social science oriented approach. Punishment should not be regarded as the end but as only the means to an end. The object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal. More so, relevancy of the circumstances of the offence and the state of mind of the convict, when the offence was committed, are the factors, to be taken note of.
38. At the time of considering the case of pre-mature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socio-economic condition of the convict’s family and other similar circumstances.
39. Considerations of public policy and humanitarian impulses – supports the concept of executive power of clemency. If clemency power exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasis that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances, e.g. suffering of a convict from an incurable disease at last stage, may warrant his release even at much early stage. ‘Vana Est Illa Potentia Quae Nunquam Venit In Actum’ means-vain is that power which never comes into play.
40. Pardon is an act of grace, proceedings from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment which law inflicts for a crime he has committed. Every civilised society recognises and has therefore provided for the pardoning power to be exercised as an act of grace and humanity in appropriate cases. This power has been exercised in most of the States from time immemorial, and has always been regarded as a necessary attribute of sovereignty. It is also an act of justice, supported by a wise public policy. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Authority not for the benefit of the convict only, but for the welfare of the people; who may properly insist upon the performance of that duty by him if a pardon or parole is to be granted.
41. This Court in Mahender Singh (supra) has taken note of the provisions of Act 1894 and rules framed thereunder as well as the relevant paragraphs of Punjab Jail Manual. Section 59 (5) of Act 1894 enables the Government to frame rules for “award of marks and shortening of sentence”. Rules define prisoner including a person committed to prison in default of furnishing security to keep peace or be of good behaviour. Rules further provide for classification of prisoners according to the intensity and gravity of the offence. According to the classification of prisoners, Class 1 prisoners are those who had committed heinous organized crimes or specially dangerous criminals. Class 2 prisoners include dacoits or persons who commit heinous organized crimes. Class 3 prisoners are those who do not fall within Class 1 or Class 2. Rule 20 thereof provides that life convict being a Class 1 prisoner if earned such remission as entitles him to release, the Superintendent shall report accordingly to the Local Government with a view to the passing of orders under Section 401 Cr.P.C. Rule 21 provides that save as provided by Rule 20, when a prisoner has earned such remission as entitles him to release, the Superintendent shall release him. Instant case falls in Class 3, not being a case of organized crime or by professionals or hereditary or specially dangerous criminals.
Undoubtedly, the aforesaid rules are applicable in Haryana in view of the State Re-organisation Act. These are statutory rules, not merely executive instructions. Therefore, a “lifer” has a right to get his case considered within the parameters laid down therein. It may not be out of place to mention here that while deciding the case in Sadhu Singh (supra), provisions of the aforesaid Act 1894 and Rules referred to hereinabove, had not been brought to the notice of this Court. More so, consistent past practice adopted by the State can furnish grounds for legitimate expectation (vide Official Liquidator v. Dayanand & Ors. (2008) 10 SCC 1).