THE release of former Minister R. Balakrishna Pillai from prison along with a number of others on November 1 in a goodwill gesture by the Kerala government will have to face legal scrutiny. Opposition Leader V.S. Achuthanandan has filed a petition in the Supreme Court challenging the special remission given to Balakrishna Pillai by Governor M.O.H. Farook under Article 161 of the Constitution on the advice of the United Democratic Front government. His contention is that the State government's decision to release the leader of a long-standing constituent of the ruling Front was a colourable exercise of power and that it had committed contempt of the court that had sentenced Balakrishna Pillai to one-year rigorous imprisonment in the Idamalayar Hydroelectric Power Project case.
The Government Order of October 24 says that the remission is applicable to prisoners having good behaviour and those not having adverse remarks. It also directs the Additional Director General of Police (Prisons) to ensure that the Kerala Prisons Rules 1958 are complied with strictly. The question is whether the Governor was aware of the alleged violation of the prison rules by Balakrishna Pillai before granting him remission.
The Supreme Court has dealt with the question of remission in a number of cases. The earliest one is Maru Ram vs Union of India (1980) in which Justice V.R. Krishna Iyer held that party favouritism should not be the basis of exercising power under Article 161 of the Constitution by the Governor. In Maru Ram, the court dealt with the challenge to Section 433(A) of the Code of Criminal Procedure, which fixed 14 years as mandatory minimum sentence for lifers. The court held this provision was consistent with Article 161 and was constitutionally valid.
Justice Krishna Iyer, on behalf of the Bench, held in Maru Ram that although the powers under Article 72 (corresponding power to remit or pardon by the President) and Article 161 were very wide, it could not run riot. He said the government was not and should not be as free as an individual in selecting the recipients for its largesse. The considerations for exercise of power under Articles 72 [or] 161 may be myriad and their occasions protean, and are left to the appropriate government, but no consideration, nor occasion, can be wholly irrelevant, irrational, discriminatory or mala fide. He held the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, could not be a law unto itself but must be informed by the finer canons of constitutionalism.
A judgment that has a bearing on the Balakrishna Pillai case is Swaran Singh vs State of Uttar Pradesh (1998). In this case, a legislator of the State Assembly, who had been convicted of murder, left the prison in less than two years as the Governor granted him remission of the remaining period of his life sentence.
A three-judge Bench of the Supreme Court found that the State government had kept the Governor in the dark about certain vital facts that went against the prisoner's eligibility for remission. The Bench blamed the government for depriving the Governor of the opportunity to exercise his powers in a fair and just manner and said the remission order fringed on arbitrariness. The court quashed the order of the Governor and directed the government to reconsider the petition of the prisoner for remission in light of the material which the Governor had no occasion to know earlier.
In another case ( Satpal vs State of Haryana, 2000), the Governor remitted the sentence of a prisoner, a Bharatiya Janata Party activist, without knowing the total period of the sentence that he had undergone. The Supreme Court deplored the haste with which the file had been processed and the unusual interest and zeal shown by the authorities in the matter of exercise of powers to grant pardon. The Bench noted that the prisoner was at large while the remission order showed him to have been in jail. It also noted that he had not surrendered to serve the sentence notwithstanding the Supreme Court's direction disposing of the appeal filed by the State in 1998.
These legal precedents are likely to determine the outcome of the Balakrishna Pillai case.V. Venkatesan in New Delhi