Judgment :- A.K. Ganguly, C.J. Heard Mr. Subramanian Swamy – Party in Person, and also the learned Advocate General, who has appeared pursuant to notice. 2. By filing this petition under Article 226 of the Constitution as public interest litigation, the petitioner prays that the G.O.(Ms)No.1155 dated 11.09.2008 passed by the Home Department, Government of Tamil Nadu should be quashed inasmuch as the said G.O. which purports to release about 1405 prisoners, who are all imprisoned as life convicts, has been issued without following the principles which are inherent in the exercise of power under Article 161 of the Constitution. The petitioner submits that he himself was Union Minister for Commerce, Law and Justice and as a member of public was actively associated in the past in matters of public administration. He submits that the act of the Government in this case calls for scrutiny by the Court. The petitioner has also pointed out that the second respondent’s name may be deleted from the array of parties, since according to him the second respondent has been added by way of mistake. In view of this, submission the second respondent is deleted from the array of parties. 3. By referring to the judgment of the Supreme Court in the case of Epuru Sudhakar and Another Vs. Govt. of A.P. and Others, (2006) 8 SCC 161 ) the petitioner argues that in the said decision Justice S.H. Kapadia, in a different but concurring opinion, pointed out the parameters of exercise of power under Article 161 of the Constitution, and in laying down the parameters, the learned Judge held that the power has to be exercised for public welfare and it cannot be merely an act of grace by the repository of such power, since the power is a constitutional power and is in public domain. The petitioner argues that going by these standards set by the Apex Court, the power exercised in the instant case cannot be sustained, since there is no whisper of public welfare in the body of the order. On the other hand, the order specifically referred to the welfare of the prisoners. Therefore, the order reads like one, as if it has been passed out of private grace and as one by way of bounty by the State. 4. On the other hand, the order specifically referred to the welfare of the prisoners. Therefore, the order reads like one, as if it has been passed out of private grace and as one by way of bounty by the State. 4. The second point of attack on the said order is that the order is motivated by mala fide considerations of the parties who are in power. When the Court asked the petitioner about particular of the authority who is acting mala fide, to that the petitioner pleaded that no such particular has been furnished in the writ petition. 5. However, his last submission is that the said order has been passed without proper consideration of the judgments of the Hon’ble Supreme Court in various cases, especially in the case of Epuru Sudhakar (supra). 6. The learned Advocate General while refuting the aforesaid contentions of the petitioner submitted that the order is not a blanket one. The order has been passed on a proper consideration of materials and upon due application of mind. He submitted that the order has been passed subject to the satisfaction of certain conditions. One of the conditions to be satisfied is that the prisoners who have been convicted for offences specified in G.O.(Ms.)No.1762, Home (Prison VI) Department dated 20th July, 1987 are not entitled to the benefit of the said order. The learned Advocate General produced the said G.O. before us and in the said G.O. it appears that the following categories of persons are not eligible for consideration for premature release. Those categories of persons are set out below:- “(i) Prisoners convicted of rape, forgery, decoity, terrorist crimes, offences against the State and prisoners sentenced under Sections 224, 376, 396 to 400, 402, 467, 471, 472, 474, 489A, 489B and 489D of the Indian Penal Code; (ii) Prisoners convicted of economic offences, black marketing, smuggling and misuse of power and authority; (iii) Prisoners sentenced under prevention of Corruption Act, Suppression of Immoral Traffic in Women and Girls Act, Drugs Act and Prevention of Food Adulteration Act.” 7. The learned Advocate General further submitted that the impugned order is subject to the further conditions mentioned therein, and they are set out below:- “(ii) That their general behaviour in the prison should be satisfactory; (iii) That the life of the convict would be safe if released; (iv)That they would be accepted by the members of their family or any other social organization which can give guarantee for the safety of their lives; .(v) That their cases should not come under Section 435 Cr.P.C.; and .(vi) That they will execute the bonds as per usual terms and conditions.” 8. The learned Advocate General further submitted that the bond, which the prisoners on their premature release will have to execute, imposes quite stringent conditions, and those conditions are as follows:- “(1) that I shall accept and fulfill all the conditions specified below till the date of expiry of my normal period of imprisonment; .(2) that I shall present myself, within fourteen days from the date of my release, before the Probation Officer of the district to which I belong, or if there is more than one Probation Officer in the district, before the Probation Officer who has jurisdiction over my place of residence, or before any other officer appointed in the place of the Probation Officer of the district or the Probation Officer having jurisdiction as aforesaid and shall produce copies of the order of my release and the copy of this bond executed by me; .(3) that I shall submit myself to the supervision of the said Probation Officer or other Officer till the date of expiry of my normal period of imprisonment or for a period of three years from the date of release whichever is earlier; (4) that I shall keep the said Probation Officer or other officer advised of my place of residence and means of livelihood till the date of expiry of my normal period of imprisonment or for a period of three years from the date of release, whichever is earlier; .(5) that during the period of supervision by the said Probation Officer or other officer – (a)I shall not quit the said district without the written permission of the said Probation or other officer; (b)I shall not associate with persons of bad character or lead a dissolute life; (c)I shall live honestly and peaceably and shall endeavour to earn an honest livelihood; (d)I shall not commit any offence punishable by any law in force in the Indian Union; (e)I shall abstain from taking intoxicants; and (f)I shall carry out such lawful directions as may from time to time be given by the said Probation Officer or other Officer for the due observance of the conditions mentioned above.” And the last paragraph of the said bond provides that in case of breach of any of the conditions the order of release is liable to be revoked. The learned Advocate General therefore submitted that the order has been passed for the welfare of general public as it appear from Clause (iv) of the impugned order extracted hereinabove. 9. The learned Advocate General denied that there is any mala fide exercise of power and no such particulars have been given by the petitioner. The learned Advocate General also submitted the contentions of the petitioner that the order has not been made on a proper appreciation of the principles enumerated in Epuru Sudhakar’s Case (supra) is also not correct. 10. This Court finds that the main judgment in the said case has been delivered by Justice Dr. Arijit Pasayat and in paragraph 34 of the said decision the learned Judge has summarized the principles on which the exercise of such power can be interfered with by Courts. The said paragraph is set out below: “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.” 11. Justice S.H. Kapadia while concurring with those principles have expressed his views by saying that the exercise of power of clemency is no longer a prerogative power and the concept of prerogative power has been diluted over the years, and it is now a power in the public domain and subject to judicial review. The extent of review is however limited. Justice S.H. Kapadia has however not added any further grounds apart from the grounds, which have been enumerated in paragraph 34 of the said judgment. 12. Therefore, considering the rival contentions, this Court is of the view that the matter has to be decided upon the detailed affidavits and upon elaborate arguments. This Court, therefore, directs the State Government to file its counter affidavit on or before 14th October, 2008. Mr. Subramanian Swami submits that he will file his reply by 21st October, 2008, and the matter may come up for hearing before the Division Bench presided over by Hon’ble Mrs. Justice Prabha Sridevan on 30th October, 2008. 13. This Court, therefore, directs the State Government to file its counter affidavit on or before 14th October, 2008. Mr. Subramanian Swami submits that he will file his reply by 21st October, 2008, and the matter may come up for hearing before the Division Bench presided over by Hon’ble Mrs. Justice Prabha Sridevan on 30th October, 2008. 13. In the meantime, the prisoners may be released subject to the conditions which have been imposed in the bond, which they have to execute on their premature release. Apart from that there will be a further condition that if ultimately the writ petitioner succeeds, in that case the order of premature release granted by the State may be recalled. The Advocate General assures this Court that by virtue of the conditions specified in the bond, the prisoners who are going to be released will have to present themselves before the appropriate Probation Officers, and the State will ensure that these conditions are regularly adhered to. State also undertakes that in the event the order of premature release is set aside by this Court, the persons released will have to go back to the prisons once again.