Doesn’t the judiciary have jurisdiction to review a governor’s discretion not to pardon a convict?

The Madras HC’s recent ruling saying it cannot go into sufficiency of the reasons behind the Governor of Tamil Nadu’s rejection of a state-level committee’s recommendation to prematurely release a lifer for good conduct in prison, is erroneous.

———-

ON On March 15, the Madras High Court refused to interfere with a government decree issued in July 2019, rejecting the recommendation of the State Level Committee for the premature release of John David, the petitioner’s son, in the case of Dr Esther v Tamil Nadu State and Ors.

Convicted by a lower court in 1998 and confirmed guilty by the Supreme Court in 2011 for the murder of a first-year medical student at Annamalai University in 1997, David was sentenced to life imprisonment for breaches of articles 364 (kidnapping or kidnapping with intent to murder) and 302 (punishment for murder) of the Indian Penal Code. His release was recommended based on the Certificate of Conduct issued by the Superintendent of Prisons which recorded his conduct as “sincere” and “obedient” while showing appreciation for his work teaching English and computers to other inmates. However, the government of Tamil Nadu rejected the recommendation of the State Level Committee considering “the cruel nature of the offense committed by him” and that he was involved in a “brutal murder/heinous crime”. The state-level committee includes the Inspector General of Prisons and the Deputy Inspector General of Prisons (Headquarters).

Read also : Why the state’s apathy toward convict petitions for pardon should concern us all

Madras High Court Vindication

161 of the Constitution of India confers on the Governor of a State discretionary power “to grant pardons, reprieves, reprieves or remissions of sentence or to suspend, remit or commute the sentence of any person convicted of a breach of any law relating to a matter the executive power of the state extends to. In this regard, the High Court noted that the State Government and the Governor are therefore “not bound by the recommendations of the Committee at State level, since the exercise of the power of premature release of a prisoner sentenced… falls under Article 161 of the Constitution of India. ”

The reasoning of the High Court is flawed not only because it is based on an erroneous reading of the Supreme Court’s judgment in the Epuru Sudhakar case, but also because it does not respect the aspiration of the justice system Indian penal system to a more rehabilitative and reformative system.

Citing the Supreme Court’s decision in The Minister of the Interior (Prison) & Ors. vs. H. Nilofer Nisha (2020), the High Court held that the power provided for in Section 161 is a “discretionary power which must be exercised by the authorities conferred with such powers under the relevant rules/regulations”. Indeed, the High Court was called upon to determine the “sufficiency” or “reasonableness” of the grounds for denying early release in the contested 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 opinion that “…The President and the Governor are the sole judges of the sufficiency of the facts and of the advisability of granting pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, are to be found in the Constitution itself. This led the Court to conclude that it could not review the sufficiency of the grounds for rejecting the Committee’s recommendation at the state level.

Read also : Using clemency to introduce nonviolence into state policy

Analysis

Arguably, however, the High Court’s reasoning is flawed not only because it is based on a misreading of the Supreme Court’s judgment in Epuru Sudhakar but also because it gives no deference to the aspiration of the Indian criminal justice system towards a more rehabilitative and reformative system. in Epuru Sudhakar, a two-judge bench of the Supreme Court made it clear that the “raison d’être” of the clemency power is “the determination of the ultimate authority that the public welfare will be best served by inflicting less than the judgment fixed”. Further, Judge Arijit Pasayat noted that while the governor’s power is their prerogative, “acts of pardon are administered by the executive branch of government in the interests of society and the discipline, education and reformation of the convicted person”. It was pointed out that “It is fairly well established that the exercise or non-exercise of the power of pardon by the President or the Governor, as the case may be, is not immune from judicial review. Limited judicial review is available in some cases. Moreover, the courts have repeatedly detained that public power, including the power conferred by the Constitution, may not be exercised arbitrarily or without sufficient cause.

The heinous nature of David’s crime is completely unrelated to the reasons for the premature release, which should instead be based on the convict’s display of remorse, his ability to integrate into society, his behavior in prison and while on parole. , among other similar considerations. To reject premature release on the basis of the former is to leave no space for reform, rehabilitation or reintegration for convicts in Indian prisons.

In the opinion of this author, the heinous nature of David’s crime is completely irrelevant to the reasons for premature release, which should rather be based on the condemned man’s display of remorse, his ability to integrate into society, his behavior in prison and on parole, among other similar situations. considerations. To reject premature release on the basis of the former is to leave no space for reform, rehabilitation or reintegration for convicts in Indian prisons. In reality, recent interviews with convicts prematurely released from Tihar prison show that the release process is even otherwise “complex” and involves “navigating through a web of procedures designed to defeat them”. An article published on this site reviews the reasons for overcrowding in Indian prisons, providing data that shows that three out of four inmates in Indian prisons are awaiting trial, and arguing that “bail, not prison” should be the norm, not the exception.

While the above 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 prison with good behavior, stands no chance to be reformed or rehabilitated.

Click on here to view the Madras High Court Order.

(The opinions expressed are personal.)

Thelma J. Longworth