SC Permits Judicial Review of Discrimination During Prisoner Release, if Alleged Within a Category

While dismissing a challenge to categorisation of prisoners, the Supreme Court opens a narrow window for judicial review of cases where there is invidious discrimination within a category.

New Delhi: The Supreme Court bench of Chief Justice of India S.A. Bobde and Justices A.S. Bopanna and V. Ramasubramanian on Tuesday dismissed an appeal by the National Alliance for People’s Movements against the Bombay high court verdict holding the High Powered Committee’s (HPC) categorisation of prisoners in Maharashtra for the purpose of temporary release to decongest prisons as valid. The HPC, which was constituted pursuant to the Supreme Court’s direction in March, categorised prisoners as booked/convicted for certain offences ineligible for temporary release.  This categorisation was under challenge in this case as arbitrary and unreasonable.

The grant of interim bail/parole/furlough due to the outbreak of the coronavirus pandemic, which requires decongesting of prisons to prevent its spread, acquired importance because there are 4,66,084 inmates in 1,339 prisons across the country, raising concerns about huge occupancy rate and overcrowding.

The HPC classified the inmates into three categories, namely, (i) undertrial prisoners/convicted persons who are facing trial or convicted to the maximum punishment of seven years or less, (ii) the convicted persons whose sentence is above seven years, and (iii) the undertrial prisoners or convicted persons who are booked for serious economic offences/bank scams and offences under Special Acts. The HPC considered the nature and severity of offence as the yardstick while considering the prisoners’ case for grant of interim bail.

The HPC consists of a senior high court judge and highly placed officials. The Supreme Court envisaged that the HPCs will have the discretion to categorise the prisoners for the purpose of temporary release, considering the circumstance prevailing in each state and union territory.

The Supreme Court made it clear that the provision for bail, as otherwise provided in law in any case, would be considered by the competent courts if such right for bail is made out before them irrespective of the pandemic or not. The HPC only excluded certain categories of jail inmates who are charged with serious offences which have adverse effects on the society at large to deny the benefit of temporary release on the ground of COVID-19 situation. The Supreme Court clarified that no other legal right has been denied.

The Supreme Court noted that as on July 24, 10,338 prisoners were released on interim bail/parole and presently 26,279 inmates are in prisons in the state. The capacity of the prisons in the state is 23,217 inmates. The state government indicated that temporary prisons have been set up in 36 locations and about 2,597 prisoners are occupying the same, and more will be shifted to avoid overcrowding in the existing prisons.

The Supreme Court noted that the cause for grievance may arise for an individual undertrial/convicted prisoner only if such person has been discriminated as against the prisoner in the same category for which the benefit has been provided by the HPC’s categorisation. The Supreme Court clarified that the HPC would be free to modify its guidelines, considering the results of the application of existing guidelines. The bench, therefore, asked the petitioners to “obtain necessary statistics” and submit an appropriate representation to the HPC in future, seeking modification of its guidelines.

The bench refused to interfere unless the criteria followed by the HPC is shown to be so arbitrary that no reasonable person can accept. But in circumstances where there is any invidious discrimination amongst the prisoners in same category and similarly placed, it would be open for the competent court to examine the same to that limited extent when grievance is raised by the person who is denied the benefit if he/she is entitled to such benefit, the bench concluded.

The high court decision

The Bombay high court bench of the Chief Justice Dipankar Datta and Justice Madhav J. Jamdar, in their separate concurring judgments pronounced on July 24, refused to accept the petitioners’ contention that excluding certain categories of prisoners or undertrials for emergency release in view of the pandemic is not reasonable classification as there is no nexus between the basis of classification and the object for which the HPC was constituted. The NAPM had submitted that only convicts who were likely to abscond or having antecedents might not be released. The NAPM’s principal challenge against the categorisation of the HPC remains unaddressed by the high court as well as the Supreme Court.

Clause 8(iii) of the HPC’s minutes of meeting dated March 25, 2020 requiring that the prisoners should have been released on two occasions earlier either on parole or furlough for the purpose of getting the benefit of emergency parole is causing hardship, as there are several convicted prisoners who are otherwise entitled for emergency release but are deprived of the same in view of the said requirement, NAPM had submitted.

Also read: Madhya Pradesh: Lack of Judicial Intervention is Making Prisons COVID-19 Hotspots

The NAPM had also argued that the classification made by the HPC is not reasonable as section 303 of the IPC, although held to be unconstitutional, is also included in the excluded category. In Mithu v State of Punjab, the Supreme Court had held the provision unconstitutional because it provided for mandatory death penalty to a life convict, who was found guilty of committing a murder while serving the sentence for the first offence. Both the HPC and the high court answered this saying it is permissible to treat such prisoners as “habitual offenders”, and deny them the benefit of temporary release. It is nothing but bringing an obnoxious provision, struck down by the Supreme Court for its arbitrariness, through the back door for an entirely different purpose.

The NAPM relied on the Supreme Court’s judgment in Nikesh Tarachand Shah v Union of India by which Section 45(1) of the Prevention of Money Laundering Act, 2002 insofar as it imposes two further conditions for release on bail was declared unconstitutional. The NAPM contended that there is no necessity to exclude the offences arising out of Special Acts. Parole is a limited legal right available to the convict, but is a statutory right, NAPM argued.

It is true that the principle of equality does not take away from the state the power of classifying persons for legitimate purposes. Equality before law does not mean that things which are different shall be treated as though they were the same. But the NAPM’s question was whether the HPC followed the legally recognised principle for classification of prisoners. This remains unanswered.

The HPC in Clause 8(iv) of its guidelines clarified that its decision to release prisoners temporarily will not apply to undertrial prisoners booked for serious economic offences/bank scam or offences under Special Acts like TADA, MCOCA, PMLA, MPID Act, NDPS Act, UAPA, POCSO Act, etc. or prisoners convicted thereunder. In considering every case for such release, the nature of the offence and the severity of the offence shall be considered and the possibility of the prisoners committing the offence in case of temporary release ( such as habitual offender) or likelihood of his/her absconding should also be considered while dealing with an application for temporary release.

Special Acts belong to a category because those booked under these Acts are not entitled to the benefit of emergency bail/parole, as commission of such offences affects the entire nation and affects the very foundation of the state.  They affect the economic interests of the citizens. Similarly, sections 121 to 130 of the IPC are offences against the state.

Sections 364(A), 366, 366(A), 366(B) and 367 to 373 are relating to kidnapping for ransom etc.  Sections 376, and 376 A, C, D. E are relating to rape. Section 396 is dacoity with murder. Offences under sections 489A, 489B and 489D are concerning counterfeit currency or bank notes etc. The HPC justified  categorising them for denial of benefit of temporary release from prisons.

Also read: Heinousness of Crime Isn’t the Test for Premature Release of Prisoners, Says SC

Rigours of the rough edges of the law need to be softened for law to retain its humane and compassionate face, Chief Justice Datta observed in his judgment; yet the NAPM failed to convince the bench about the merits of its petition.

NAPM contended that an entitlement to temporary release on interim bail or emergency parole is a facet of right to life and personal liberty. The Supreme Court has time and again held that if a person commits a crime, it does not mean that by committing such crime he ceases to be a human being and that he can be deprived of those aspects of life which constitutes human dignity. A prisoner enjoys all fundamental rights, notwithstanding the restrictions brought about by his incarceration.

Rule 19 of the Maharasthra Prisons (Bombay Furlough and Parole) Rules, 1959 were referred to for highlighting that a convict/prisoner could be released on emergency parole during the period the notification issued under the Epidemics Diseases Act, 1897 continues to be in operation. An entitlement for interim bail or emergency parole is a fundamental right or a statutory right which flows from Article 21 of the Constitution and not a concession, argued NAPM.

The high court, however, disagreed and held that the temporary release is a concession and a mandamus would not lie to enforce a concession. The Supreme Court, for inexplicable reasons, chose to skirt this debate in its judgment.