A.K. Jayasankaran Nambiar, J.
1. These writ petitions have been placed before us pursuant to a reference order of a Division Bench of this Court dated 22.3.2011 in I.A.No.3474/2011 in W.P.(C).No.32078/2010. The W.P.(C).No.32078/2010 was filed by the wife of a convict for an offence under Section 302 of the Indian Penal Code [hereinafter referred to as the 'IPC'], who was sentenced to imprisonment for life and serving the sentence. It was the case of the petitioner therein that the convict had been in jail for more than 16 years of actual imprisonment, and together with the period of remission earned by him, the period of sentence suffered by him would be approximately 23 years. In the writ petition, the petitioner was aggrieved by the non-consideration of her husband's case for the benefit of remission of sentence or grant of pardon, while granting such benefit to other prisoners, who, according to the writ petitioner, were either not entitled to such benefit or were equally placed as the petitioner's husband for the grant of the benefit under section 432 of the Code of Criminal Procedure, 1973 [hereinafter referred to as the 'Cr.P.C.'] or under Article 161 of the Constitution of India. The petitioner also impugned the Government Order - G.O.(MS) No.47/11/Home dated 18.2.2011, by which the State of Kerala directed the premature release of 209 prisoners, all of whom were convicted for offences under Section 302 IPC, and in some cases for other offences also, in purported exercise of the power under Article 161 of the Constitution of India.
2. During the pendency of the said writ petition, I.A. No. 3474/2011 came to be filed by a third party [Smt. Ani Joseph K.A.] with a prayer as follows:
"For the reasons stated in the accompanying affidavit, it is respectfully prayed that this Honourable Court be pleased to hear the petitioner in the above writ petition in public interest as the allegations raised regarding release of hardened criminals flouting the mandate of section 433A of the Code of Criminal Procedure, 1973 various provisions in the Kerala Prison Manual, Government Order stipulating criteria for premature release and various judgments of the Apex Court, in the writ petition have serious far reaching consequences on the security of the Society."
3. The Division Bench that considered the Writ Petition, as also the aforementioned I.A., took note of the averments therein, and was of the prima facie opinion that a periodic exercise of the constitutional authority of the Governor, under Article 161 of the Constitution, in a large number of cases, which are otherwise not eligible for consideration, in view of the mandate of the Parliament under section 433A Cr.P.C., 1973 is itself an arbitrary exercise of the constitutional discretion vested in the Governor. It was felt that, although it was held that the restriction contained under Section 433A per se does not limit the constitutional authority of either the Governor or the President acting under Articles 161 or 72 as the case may be, the Supreme Court had opined in State of Haryana and Others v. Jagadish - [2010(2) R.C.R.(Criminal) 464 : (2010) 4 SCC 216] that the authority either under Article 72 conferred on the 'President' or Article 161 conferred on the 'Governor', is meant to be used sparingly. The Division Bench therefore directed I.A.No.3474/2011 in W.P.(C).No. 32078/2010 to be numbered separately as a 'Writ Petition', and having regard to the nature of the controversy and the constitutional issues involved, the Division Bench though it fit to refer the matter before a Full Bench of this Court for consideration. It is accordingly that I.A.No.3474/2011 in W.P.(C).No.32078/2010 came to be numbered as W.P. (C).No. 14628/2011 and was referred before us.
4. W.P.(C).No.8959/2011 is one that is filed by the petitioners therein, seeking a direction to the Sub Inspector of Police, Pothanicaud Police Station, to provide police protection to them. It is the case of the 1st petitioner [Sri. Sany Francis] that he is the brother of late Baiju Francis, and the 2nd petitioner [Sri. Geo Joseph] is his son. It is stated that Baiju Francis was murdered by the 6th and 7th respondents therein on 25.12.1996, and consequent to a trial that was commenced against the said 6th and 7th respondents, they were convicted and sentenced for life imprisonment and a fine of L 10,000/- under Section 302 read with Section 34 of the IPC. The said conviction and sentence was confirmed by this Court by judgment dated 12.11.2004 in Crl.A.No.219/2000. A Special Leave Petition [Crl.] preferred by the 6th and 7th respondents before the Supreme Court was also dismissed, thereby confirming the conviction and sentence passed by the courts below against them. In the writ petition, the petitioners, while seeking police protection fearing a danger to their lives at the hands of the 6th and 7th respondents, who were prematurely released pursuant to the Government Order dated 18.2.2011, also impugned the said Government Order, which was produced as Ext.P7 in the said writ petition. When the writ petition came up for orders before a Division Bench on 30.3.2011, the Division Bench, by a reference order of the same date, directed the writ petition to be posted along with the connected writ petitions before the Full Bench.
5. W.P.(C).No.9463/2011 is one filed by Smt.Jincy, D/o.Jose, Vettukuzhiyil, Kozhikode District, who was the 4th accused in Sessions Case No.14/1986 on the file of the Sessions Court, Wayanad, and who is undergoing rigorous imprisonment for life, pursuant to a conviction under Section 302 IPC, and rigorous imprisonment for seven years under Section 398 IPC. As on the date of the writ petition, the convict had already undergone imprisonment for 11 years in Kannur Central Jail. In the writ petition, it is the case of the writ petitioner that, while 209 convicts were prematurely released from jail, by the Government Order dated 18.2.2011, her father was not considered for premature release. The said exclusion of her father's case is alleged to be arbitrary and discriminatory, and the prayer sought for in the writ petition is for a direction to the State Government to release the petitioner's father from jail forthwith. Thus the writ petition was directed to be placed along with the matters pending before the Full Bench.
6. W.P.(C).No.10276/2017 is one that is filed in the nature of a 'Public Interest Litigation' [PIL] against the alleged proposal for arbitrary release and grant of remission to convicts in the prisons in the State of Kerala. Taking note of the fact that the PIL raised an important issue with regard to the right of the State to grant en masse remission to convicts, and facilitate their premature release, a Division Bench of this Court, by its order dated 28.6.2017 directed the case to be posted along with the connected matters that are posted before the Full Bench.
7. It can be seen therefore that, while in W.P.(C).No.14628/2011, W.P. (C).No. 8459/2011 and W.P.(C).No.9463/2011, the challenge is to the Government Order dated 18.2.2011, on the ground that the said order is the result of an arbitrary exercise of power under Article 161 of the Constitution of India, either in respect of its inclusion of certain convicts for the grant of the benefit of premature release or in its exclusion of certain others for the grant of the said benefit, the issue in W.P.(C).No. 10276/2017 is with regard to the steps taken by the Government, in exercise of the powers conferred under Article 161 of the Constitution of India, to grant special remission to prisoners in connection with the 60th Anniversary Celebrations of the State Re-organisation Day.
8. When these writ petitions came up for consideration before us on 26.10.2018, we deemed it appropriate to frame the following issues for consideration in these proceedings;
I) Whether G.O.(MS)No.47/2011/Home dated 18.02.2011, by which 209 prisoners were ordered to be released, is liable to be interfered with by this Honourable Court on the ground that the said order is the result of an arbitrary exercise of power under Article 161 of the Constitution?
II) Whether, in the exercise of the power under Article 161 of the Constitution, the Governor is obliged to take note of the statutory mandate under section 433A of the Code of Criminal Procedure, 1973 and conform to the same while remitting the sentence of a convicted prisoner whose case falls within the ambit of the said Section?
III) Whether Sections 72 and 99 of the Kerala Prisons and correctional Services (Management) Act, 2010 is ultra vires the Constitution of India, on account of the excessive, unguided and unbridled delegation of power authorised thereunder to the Rule making authorities?
IV) Whether Writ Petition No.10276/2017 is maintainable?
9. We shall first deal with the challenge to the validity of G.O (MS) No.47/2011/Home dated 18.02.2011, by which, the State Government directed the premature release of 209 prisoners. The said G.O. is extracted herein below:
GOVERNMENT OF KERALA
Home Department-Prisons-Premature release of Prisoners who have completed imprisonment of 10 years and above as on 31/3/2010-Released-Orders issued.
HOME [B] DEPARTMENT
Dated, Thiruvananthapuram, 18/2/2011
Read:- 1. Letter No.WP17328/10 dated 27/7/2010 and 23/9/2010 of the Additional Director General of Police (Prisons), Thiruvananthapuram.
2. G.O.(MS) No.118/10/Home dated 27/5/2010
3. G.O.(MS) No.135/10/Home dated 19/6/2010
4. G.O.(MS) No.25/11/Home dated 29/1/2011.
It has come to the notice of the Government that there are large number of prisoners who have served long periods of incarceration languishing in jails without being considered for their release even after achieving the intended objectives of correction and reformation.
Government viewed this mater with concern and it was decided to consider the premature release of such prisoners who have completed imprisonment of 10 years and above (with remission) in exercise of the powers conferred under Article 161 of the Constitution of India.
As per the letters read as 1st paper above, the Additional Director of Police (Prisons) has forwarded the list consisting of 307 number of prisoners who have completed 10 years and above of imprisonment as on 31/3/2010. Based on the existing orders of the Hon'ble Supreme Court and the High Court, exercising powers under Article 161 of the Constitution, in individual cases or as a group of cases is possible after examining the background of the prisoners and following rational norms.
1. The prisoner should have completed 10 years of imprisonment (with remission) as on 31.3.2010.
2. The general behaviour of the prisoner in the prison should have been satisfactory.
3. The life convicts coming under the following categories will not be considered for premature release.
(i) Professional or hired murders/Habitual offenders.
(ii) Persons who committed murder for religious, communal or caste reasons and those sentenced to life imprisonment for offences against the security of the state.
(iii) Persons who committed murder while involved in smuggling operations or murder of prison staff, prisoner, prison visitors and public servants on duty.
(iv) Those who were involved in sexual assault in any form against women and children resulting in death and premeditated murder of women and children, and persons aged above 65 years.
4. All the prisoners who have completed 20 years of actual imprisonment may be released prematurely unless there are exceptional circumstances, which necessitate their continued imprisonment in the public interest.
5. The prisoners who have been convicted by Courts of criminals jurisdiction of other State/Union Territories/other countries undergoing imprisonment in the State will not be considered for premature release.
Under Article 161 of the Constitution of India, the Governor of the State shall have the power to grant pardon, reprieve, respite or remission of any punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to the matter to which the executive power of the State extends.
Government have examined the 307 cases of prisoners who have served more than 10 years of imprisonment in detail, with reference to the judgment of their conviction, reports of conduct of the prisoners in jail, reports from Police/Probation Officers etc and it has been decided to release such prisoners under this category who were found fit for premature release since they have been found reformed and in whose cases there are favourable reports form Probation/Police Officers and the threat to the society does not appear to be probable. Accordingly 215 prisoners are found fit for release.
1. C.No. 8106, Eby Yesudas - Central Prison, Thiruvananthapuram
2. C.No. 2041, Gangadharan - Open Prison, Nettukaltheri.
3. C.No. 9115, Raveendran - Central Prison, Thiruvananthapuram
4. C.No. 9672, Gopi - Central Prison, Thiruvananthapuram
5. C.No. 9846, Thankachan - Central Prison, Thiruvananthapuram
6. C.No. 5793, Dineshan - Central Prison, Thiruvananthapuram
In the above circumstances, in exercise of the powers conferred under Article 161 of the Constitution of India, Government, with the approval of His Excellency the Governor, are pleased to order the premature release of 209 prisoners who have completed imprisonment of 10 years and above (with remission) and in whose cases there are favourable report either from the Police or Probation Officer or both, as per the list appended to this order, subject to the conditions laid down under Rule 547 and 548 Kerala Prison Rules, by remitting the unexpired portion of sentence and on condition that the release will be effected only on payment of fine, if any, sentenced or after undergoing the default sentence.
By Order of the Governor
Additional Chief Secretary to Government
The Additional Director General of Police (Prisons),
Thiruvananthapuram (with all connected records).
The Director General of Police, Police Headquarters, Thiruvananthapuram.
The Director General of Prosecution, Ernakulam (with Covering Letter)
The Superintendent, Central Prison, Thiruvananthapuram/Kannur/Viyyur/Open Prison, Nettukaltheri, Cheemeni and Women Prison, Kannur.
The Secretary to Governor, Rajbhavan (With covering letter)
The Private Secretary to Chief Minister
The Private Secretary to Minister (Home, Vigilance & Tourism)
The General Administration (SC) Department
Stock file/Office copy.
10. In response to the averments in the writ petitions as regards the manner of exercise of power by the State Government, under Article 161 of the Constitution of India, it is the contention of the learned Advocate General appearing for the State Government that the aforesaid order was passed by the Governor in exercise of the clemency power under Article 161 of the Constitution of India and that, in the exercise of the said power, the State Government/Governor was guided by the guidelines specified in the Government Order extracted above.
11. It is the further contention of the learned Advocate General, referring to the decisions in Maru Ram v. Union of India and Others - [(1981) 1 SCC 107], Kehar Singh v. Union of India - [(1989) 1 SCC 204], Ashok Kumar Alias Golu v. Union of India and Others - [1991(2) R.C.R.(Criminal) 654 : (1991) 3 SCC 498] and Sanaboina Satyanarayana v. Government of A.P. and Others - [2003(4) R.C.R.(Criminal) 1 : (2003) 10 SCC 78] that the power of the Executive under Article 162 is absolute, and not controlled by the provisions of section 433A of the Cr.P.C., 1973 It is contended that once the Government has chosen to lay down guidelines, to guide the executive in the exercise of power under Article 161 of the Constitution, then, in the absence of anything to show that the guidelines were bad, this Court cannot interfere with the decision of the Government by exercising its powers of judicial review. It is also contended, by reference to Epuru Sudhakar and Another v. Govt. of A.P. and Others - [2006(4) R.C.R.(Criminal) 616 : (2006) 8 SCC 161], Bikas Chatterjee v. Union of India and Others - [(2004) 7 SCC 634], Swaran Singh v. State of U.P. - [1998(2) R.C.R.(Criminal) 267 : (1998) 4 SCC 75], State of Haryana and Others v. Jagdish - [(2010) 4 SCC 216], Union of India v. V. Sriharan Alias Murugan and Others - [2016(1) R.C.R.(Criminal) 234 : (2016) 7 SCC 1] and Vikas Yadav v. State of U.P. - [2016(4) R.C.R.(Criminal) 546 : 2017 (2) KLT 266 (SC)] that the power of judicial review can be resorted to only in the exceptional circumstances mentioned in the said decisions, and in cases where the exercise of power is demonstrated to be mala fide or arbitrary in nature. The said vitiating factors are stated to be absent in the instant cases.
12. We might clarify, at the outset, that the existence of the power in the Governor to grant pardons, reprieves and remission of sentences is not in dispute in these writ petitions, as indeed it cannot be, since the power is one expressly conferred under Article 161 of our Constitution. We are concerned in these cases only with the manner of exercise of that power, and the extent to which, and the circumstances under which, this Court can interfere of the said exercise of power, in proceedings under Article 226 of our Constitution. The Article 161 of our Constitution reads as follows:
"161. Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases:- 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."
13. Also relevant for our purposes is Article 163 of the Constitution, which reads as follows:
"163. Council of Ministers to aid and advise Governor:- (1) There shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court."
14. It is evident from a mere reading of the provision that in the exercise of the power under Article 161, the Governor is called upon to discharge an executive function. The reason why the Executive is given a power to grant pardons, reprieves and remission of sentences is probably best explained by Taft, C.J. in the American case of Grosssman, Exp - 267 US 87; 69 L.Ed 527, as follows;
"Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it."
15. What was stated in the context of similar provisions under the American Constitution would, in our view, apply in the context of our Constitution also. Given that the executive is conferred with a power to grant pardon, the question arises as to how the said power is to be exercised. We cannot forget that the power is one that is given under our Constitution and, as with any other Constituent power, is to be exercised on the principles of trust keeping in mind the public interest sought to be served through the exercise of such power. This salutary theme must inform the exercise of all Constituent power for, as stated in the Latin Maxim "Salus Populi Supreme Lex" - the interest of the public is the supreme law.
16. The nature of the power and the manner of its exercise was considered by the Supreme Court in Epuru Sudhakar and Another v. Govt. of A.P. and Others - [(2006) 8 SCC 161], where, in his separate concurring judgment, Justice Kapadia (as he then was) observed as follows:
"65. 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. This discretion, therefore, has to be exercised on public considerations alone. The President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the 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. Therefore, the principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutations.
66. 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. It eliminates the effect of conviction without addressing the defendant's guilt or innocence. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. It can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. The Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be subject to the Rule of Law. The rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of "Government according to law". The ethos of "Government according to law" requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, the as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.
67. 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. The exercise of power depends upon the facts and circumstances of each case and the necessity or justification for exercise of that power has to be judged from case to case. It is important to bear in mind that every aspect of the exercise of the power under Article 72 as also under Article 161 does not fall in he judicial domain. In certain cases, a particular aspect may not be justifiable. However, even in such cases there has to exist requisite material on the basis of which the power is exercised under article 72 or under Article 161 of the constitution, as the case may be. (In the circumstances, one cannot draw the guidelines for regulating the exercise of the power.
68. As stated above, exercise or non-exercise of the power of pardon by the President or the Governor is not immune from judicial review. Though, the circumstances and the criteria to guide exercise of this power may be infinite, one principle is definite and admits of no doubt, namely, that the impugned decision must indicate exercise of the power by application of manageable standards and in such cases courts will not interfere in its supervisory jurisdiction. By manageable standards we mean standards expected in functioning democracy. A pardon obtained by fraud or granted by mistake or granted for improper reasons would invite judicial review. The prerogative power is the flexible power and its exercise can and should be adapted to meet the circumstances of the particular case. The constitutional justification for judicial review, and the vindication of the Rule of Law remain constant in all areas, but the mechanism for giving effect to that justification varies."
The circumstances under which a judicial intervention was possible was then indicated as follows:
"34. The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned 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."
17. The aforesaid judgment also deals with a situation, as arises in the instant cases, where, the Government Order that is impugned does not disclose the material or the reasons that weighed with the Government while passing the order in terms of Article 161of the Constitution of India. While holding that the affected party need not be given the reasons behind the order that is impugned, it was clarified that the absence of any obligation to convey reasons does not mean that there should not be legitimate or relevant reasons for passing the order. In that context, a reference was made to S.R. Bommai v. Union of India - [(1994) 3 SCC 1], where, in the context of exercise of power under Article 356 of the Constitution, it was held that "When a proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there exists material which showed that the Government could not be carried on in accordance with the provisions of the Constitution. It was held that since such material would be exclusively within the knowledge of the Union Government, in view of the provisions of Section 106 of the Evidence Act, the burden of proving the existence of such material would be on the Union Government." Reference was also made to the decision of the House of Lords in Padfield v. Minister of Agriculture, Fisheries and Food - [(1968) 1 All ER 694], where Lord Upjohn, while dealing with the position where a Government chose not to disclose the reasons or material for the impugned action, observed "..... if he does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion......". We make this observation in the instant cases since, it has been the stand of the State Government, while contending that the Government Order is beyond the pale of judicial review, that the Government is not obliged to state the reasons that weighed with it while passing orders under Article 161 of our Constitution.
18. We note that in the instant cases, but for the exercise of power under Article 161 of the Constitution, the case of the 209 prisoners covered by the G.O. dated 18.2.2011, would be hit by the provisions of Section 433A of the Cr.PC, and they would not have been entitled to a premature release from prison. section 433A Cr.P.C., 1973 reads as follows:
"433A. Restriction on powers of remission or commutation in certain cases
Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments 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 had served at least fourteen years of imprisonment."
19. The power under Article 161 of our Constitution, is not controlled in any manner by the provisions of section 433A of the Code of Criminal Procedure, 1973. This position has been settled through the Constitution Bench decision of the Supreme Court in Maru Ram v. Union of India - [(1981) 1 SCC 107]. It is relevant to note, however, that even in that case the Supreme Court did observe that while the State Government could frame guidelines to aid the Governor in the exercise of his power under Article 161 of the Constitution, the provisions of Section 433A itself could serve as a guideline. Thus, even if the legislative diktat in Section 433A does not control the exercise of gubernatorial power, the same cannot be ignored by the Governor while exercising his power under Article 161 of the Constitution. This is more so because Section 433A of the Cr.PC was introduced by way of an amendment to the Cr.PC, to deal with a particular situation that saw life convicts being released prior to their completing fourteen years of actual sentence, by availing the benefit of the remission provisions. The provision was introduced to ensure that such life convicts underwent at least fourteen years of actual incarceration before their release from prison. It is also relevant that the Supreme Court in Maru Ram's case rejected a challenge to the legal and constitutional validity of the provision. In our view, the exercise of power by the Executive under Article 161 of our Constitution, although not controlled by statutory provisions, has nevertheless to take note of the legislative mandate, as endorsed by judicial pronouncements. A decision taken without taking note of the policy considerations that led to the introduction of Section 433A in the Cr.PC, and ignoring the same would, in our view, fail the test of reasonableness and, consequently, be held bad as one not taken in public interest. This aspect was adverted to by the Supreme Court in Maru Ram's case [supra], where at paragraph 94 in the judgment of Fazal Ali, J., it is observed as follows:
"94. Doubtless, the President of India under Article 72 and the State Government under Article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc. This power can neither be altered, modified nor interfered with by any statutory provision. But, the fact remains that higher the power, the more cautious would be its exercise. This is particularly so because the present enactment has been passed by the Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising the powers under the aforesaid articles of the Constitution neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook the object, spirit and philosophy of Section 433-A so as to create a conflict between the legislative intent and the executive power. It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter."
20. Thus, we are of the definite opinion that after Section 433A of the Cr.PC became a part of the law of our land, the Government cannot exercise their power to commute sentences by disregarding the spirit of the said statutory provision. At the very least, the Government must apply its mind to the individual cases before it and determine whether there are exceptional circumstances that call for a departure from the mandate of Section 433A of the Cr.PC in those cases. If such an exercise is not undertaken, the exercise of power under Article 161 would have to be seen as arbitrary and illegal. On its part, the Council of Ministers, on whose aid and advise the Governor acts, cannot ignore the provisions of Section 433A of the Cr.PC and pass an order with a view to get over the limitation imposed on them by the legislature. Although the Governor, in the exercise of his power under Article 161 of our Constitution, acts on the aid and advise of the Council of Ministers, their advise has necessarily to be in accordance with the law and well established Constitutional conventions.
21. During the course of the hearing, we had called for the files of the State Government to ascertain the procedure that was followed while issuing the impugned Government Order. The files reveal that the while, initially, the Home Ministry called for a proposal from the Additional Director General of Police (Prisons) for release of life convicts in the State on the occasion of the Republic Day of 2010, the said exercise could not be completed by the said date. By another communication dated 07.05.2010, therefore, the Home Ministry called for proposals for release of life convicts who had completed 10 years incarceration (together with remission) as on 31.10.2010, so as to place the said cases before the Council of Ministers. The ADGP (Prisons) accordingly initiated the proposal and eventually forwarded a list of 305 prisoners who were undergoing life sentence in the prisons in the State, and who had completed 10 years incarceration (with remission) as on the cut-off date. The list forwarded by the ADGP (Prisons) was accompanied by the Police reports and Probation Officers reports pertaining to each of the prisoners. Thereafter, the State Government appears to have segregated the enlisted prisoners into two categories and listed their names under two Annexures, the first containing 215 names of those prisoners who were recommended for release, and the second containing 91 names of those who were not found suitable for premature release.
22. The files reveal that the selection of prisoners for premature release was based on the finding by the Government that the jails in the State were overcrowded and it was getting difficult to provide the minimum required facilities for prisoners. It was also found that detention of prisoners in jail was getting to be expensive for the State and that there was no necessity to retain prisoners beyond ten years when they have been reformed and a threat to society did not appear probable. A policy decision was taken to exclude for the benefit of premature release, those prisoners who had adverse police reports and probationary officers reports. The consideration for the extension of benefit was confined to those prisoners who had a favourable report either from the Police authorities or from the Probationary Officers. Significantly absent, however, is any consideration of the case of each prisoner vis-a-vis the special circumstances that called for a departure from the mandate of Section 433A of the Cr.PC.
23. It is also seen from the files produced before us that the file containing the decision of the Council of Ministers was circulated among the relevant functionaries and was signed by the Home Minister on 02.02.2011 and by the Chief Minister on 04.02.2011. Thereafter, it was forwarded to the Governor for his approval. While granting approval on 13.02.2011, the Governor clearly indicated that the approval was subject to his opinion, conveyed to the Chief Minister, on 15.11.2010. The files made available to us do not contain a copy of this communication dated 15.11.2010 of the Governor but the file notings do indicate that the Governor did have some reservations with regard to the consideration by the Council of Minsters while ordering the premature release of prisoners. Thereafter, while the notings in the file indicate that the opinion of the Advocate General was sought for and was awaited, the GO itself was published on 18.02.2011.
24. We might reiterate that it is on finding that the impugned Government Order did not give any indication as regards the material that was available before the Council of Ministers at the time of their taking the decision, that we called for the files of the Government to ascertain whether there was any illegality in the exercise of power under Article 161 of the Constitution. Our scrutiny of the files reveals that the only material available before the Council of Ministers was the Cabinet Note that was put up, together with a statement showing the actual period of imprisonment undergone by the prisoners, the gist of the case that led to their conviction and remarks showing whether they had been recommended for a premature release by the Police authorities, Probationary Officers or both and whether or not they fell within the excluded categories of prisoners as per the guidelines formulated by the State Government. There is nothing to suggest that the Council of Minsters were informed of the particular circumstances that warranted a recommendation for premature release of a prisoner who had an adverse report from either the Police authorities or the Probationary Officer and a favourable report from the other. Similarly, the exceptional factors that were taken into account for exempting the prisoner concerned from the rigours of Section 433A of the Cr.PC were also not made available before the Council of Ministers or, for that matter, before the Governor. In our view, the said lapses on the part of the State Government, would vitiate the impugned Government Order and the approval granted to it by the Governor, since the exercise of the Constituent power under Article 161 of our Constitution by high Constitutional functionaries must take note of the effect of their decision on the family of the victims, the society as a whole and the precedent it sets for the future. We, therefore, quash the Government order dated 18.02.2011 impugned in these writ petitions and direct that the proposal for premature release of the 209 prisoners be examined afresh in the light of the observations in this judgment. The said exercise shall be completed within a period of six months from the date of receipt of a copy of this judgment.
25. We are mindful of the fact that the 209 prisoners covered by the impugned Government Order have since been released and, during the pendency of these writ petitions, have been living as free persons in society. While the natural legal consequence of our quashing the Government Order that led to their premature release would have been to subject them to immediate re-incarceration pending a fresh decision of the Gov
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ernor, we refrain from issuing such a direction solely because many of them are not parties in the writ petitions before us. That apart, we are of the view that their conduct subsequent to their release, over the last seven years and more, should also be taken into consideration by the State Government/Governor while reconsidering their case for pre-mature release from prison. The State Government/Governor shall, at the time of reconsideration of the matter, proceed with the clear understanding that, in the case of prisoners who would otherwise fall within the ambit of Section 433A of the Cr.PC, their pre-mature release, before the expiry of the period of fourteen years of actual imprisonment, should only be in exceptional cases where a perusal of the police report, probationary officers report and other facts brought to their notice, read with the relevant guidelines framed by the State Government for exercise of the power under Article 161 of the Constitution, warrant a deviation from the statutory prescription under Section 433A of the Cr.PC. We make it clear that if no decision is taken by the functionaries under Article 161 within the said period of six months, then it will be deemed that there is no exercise of the power under Article 161 in favour of the prisoners concerned and steps shall be taken to re-incarcerate such prisoners for serving out the remainder of their sentence. Issues (I) and (II) are accordingly answered in the affirmative, and W.P.(C). Nos.14628/2011, 8959/2011 and 9463/2011 disposed on that basis. 26. Before parting with these cases, we must advert to W.P. (C).No.10276/2017 which, as already noted above, is one that is filed in the nature of a 'Public Interest Litigation' [PIL] against the alleged proposal for arbitrary release and grant of remission to convicts in the prisons in the State of Kerala. A Division bench of this court while considering the issue and referring the matter for consideration by this Full Bench, made some observations with regard to the validity of Sections 72 and 99 of the Kerala Prisons and Correctional Services (Management) Act, 2010 and the Rules made thereunder. The Division bench also observed that orders passed by the State Government/Governor under Article 161 of the Constitution would not be given effect to without further orders from the court. In the counter affidavits filed by the State Government, it is stated that the State Government has no intention to release prisoners en masse and the only proposal pending consideration by the Government is for steps to grant special remission on the occasion of the "Vajra Keralam" - the 60th Anniversary of the State Re-organisation. It is stated that the grant of special remission would help reduce the period of incarceration of the prisoners although it would not entail an immediate release from prison. In the case of life convicts, their case would be considered by the Jail Advisory Board only on completion of actual imprisonment of 14 years, as provided under Section 433A of the Cr.PC. It is further stated that, although the initial proposal was for considering the case of 2262 prisoners for the grant of special remission, the actual recommendation has been only for 739 prisoners. It is further stated that the State Government has since framed fresh guidelines, vide G.O (P) No. 73/2018/Home dated 23.11.2018, for the grant of special remissions through the exercise of power under Article 161 of the Constitution. It is the submission of the learned Advocate General that, insofar as there has been no decision taken by the State Government, based on the guidelines now formulated, as regards the grant of special remission to the 739 prisoners, the writ petition itself is premature. 27. We find force in the said submission of the learned Advocate General and would think that a challenge may lie only after a decision has been taken by the State Government in exercise of its power under Article 161 of the Constitution. It would be beyond the pale of judicial review to intervene at a stage prior to a decision taken by the functionaries under Article 161 of the Constitution. Taking note of the submissions of the learned Advocate General, therefore, based on the counter affidavits and additional affidavits filed in the writ petition, we dismiss W.P.(C).No.10276/2017, as premature and answer issue (IV) in the negative. Consequently, we do not see it necessary to answer issue (III) that arises only in W.P(C).No.10276/2017.