2023INSC843 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO(S). 520 OF 2022

JOSEPH …APPELLANT(S)

VERSUS

THE STATE OF KERALA & ORS. …RESPONDENT(S)

J U D G M E N T

S. RAVINDRA BHAT, J.

1.The petitioner, currently serving a life imprisonment sentence for a crime

committed in 1996, punishable under Sections 302 and 392 of the Indian Penal

Code (hereafter “IPC”) approaches this court seeking to enforce his right under

Article 32 of the Constitution of India. He seeks appropriate direction to the

state government, to prematurely release him, having been in custody (i.e.,

actual imprisonment) for over 26 years, and served a sentence of over 35 years

(including over 8 years of remission earned).

Facts and background

2.It was alleged that on 16.09.1994, the petitioner had gone to his sister-in-

law’s (the deceased victim) place of work, and on the false pretext that her

mother was seriously ill and had been admitted to the hospital, taken her away

with the permission of the in-charge of the convent where she worked. The

prosecution case was that he had her walk along the railway line and at a

desolate place, allegedly raped and robbed her of the ornaments she was

wearing, before laying her on the tracks to be runover by a passing train.

2

3.The petitioner was arrested on 09.10.1994 in connection with the case

and remained in custody till the trial court

1

acquitted him of all charges on

23.03.1996. The High Court

2

reversed the acquittal, and convicted the petitioner

by its judgment dated 06.01.1998 for the offences punishable under Section

302, 376 and 392 IPC. The High Court sentenced him to life imprisonment for

the offence under Section 302, and rigorous imprisonment of 7 years on each

count of Section 376 and 392 IPC, which were to run concurrently. This court

3

,

however, on 27.04.2000 set aside the conviction under Section 376 IPC and

confirmed the conviction and sentence under Sections 302 and 392 IPC only.

4.Pursuant to an order of this court, the respondent-state filed an affidavit

indicating the computation of his period of sentence undergone, the status of his

plea for remission to be granted, as well as filed the state’s various remission

policies (as amended from time to time). The petitioner completed 1 year 5

months and 10 days of custody as an undertrial, before his acquittal by the trial

court. After his conviction by the High Court, he surrendered to the sentence on

28.01.1998, and remained in custody thereafter. On 13.08.2010, he completed

14 years of actual imprisonment (including the time spent as an undertrial). And

on 13.08.2016, he completed 20 years of actual imprisonment. The custody

certificate produced in his writ petition, confirms that he completed actual

imprisonment of 25 years 9 months and 26 days on 07.06.2022, (i.e., he

completed 25 years actual imprisonment on 13.08.2021). However, in terms of

the state’s counter affidavit, as on 31.01.2023, he completed 25 years 10

months 3 days of actual imprisonment and has earned 8 years 4 months and 16

days in remission. Regardless of the arithmetical inconsistencies, it is not

contested that he has completed over 26 years of actual imprisonment.

5.In the course of hearing, it was pointed out that the petitioner’s case had

been considered by the Advisory Committee/Jail Advisory Board under

1 By judgment dated 23.03.1996 passed by the Sessions Court, Thrissur in S.C. No. 73/1995.

2 By judgment dated 06.01.1998 passed by the Kerala High Court in Crl. A. No. 511/1996.

3 By judgment dated 27.04.2000 passed by this Court in Crl. A. No. 656/1998.

3

prevailing Rules

4

on nine occasions of which three times, the Board had

recommended his premature release. However, the state government had

rejected his request on all three occasions. Pursuant to a direction by this court,

the State has placed on record each of the Minutes of the Meeting/Reports of the

Advisory Boards, containing recommendations (positive and negative) relating

to the petitioner, and the rejection orders passed by the State on the three

occasions wherein the Board recommended release. These are summarized

below:

ADVISORY COMMITTEE/JAIL ADVISORY BOARD

Date & Statutory

provisions/Rules

applied

Consideration of petitioner’s case and reasoning

10.08.2011

[1958 Rules]

Petitioner’s case unanimously rejected as it was a case of premediated

murder.

27.08.2013

[1958 Rules]

Based on the police report and manner of commission of offence, the

three official members opposed recommendation, while the three

non-official members recommended release. Committee rejected

proposal.

30.06.2014

[Both 1958 and

2014 Rules]

Listed under separate heading ‘cases of prisoners who have been

convicted for offences against women but are not premediated and

thus coming under purview of government directions’. The District

Probation officer recommended release, while the police opposed.

Recorded that he is hard working, disciplined, and reformed and

hence, Petitioner’s case was deferred to the next meeting given that

he had completed over 17 years of imprisonment.

29.09.2015

[2014 Rules]

Same observations/conclusions as last date of consideration;

petitioner’s case was unanimously directed to be considered afresh

after receiving detailed reports from the probation officer and police

and the case was deferred for consideration till November 2015.

08.01.2016

[2014 Rules]

Petitioner’s case rejected on the ground that the police report did not

recommend release.

10.01.2017

[2014 Rules]

Police report did not recommend release, while the reports of the

probation officer and jail superintendent respectively, supported

release. After a detailed discussion of the police report, charges

levelled, and his life inside and outside prison – probation officer and

non-official members supported release. Thereafter, the Board

4 Kerala Prison Rules, 1958 (hereafter ‘1958 Rules’) and Kerala Prisons and Correctional Services

(Management) Rules, 2014 (hereafter ‘2014 Rules’).

4

unanimously recommended the petitioner’s case for premature

release.

13.08.2019

[2014 Rules]

District Probation officer recommended premature release, while the

police report again recommended against release. Considering his life

on parole, character in prison, and period undergone, case was

deferred for consideration in next meeting.

26.02.2020

[2014 Rules]

Considering the long term imprisonment undergone, age of convict,

character in prison, family background and situation, Petitioner’s case

unanimously recommended for release.

07.03.2022

[2014 Rules]

Petitioner’s case was discussed in detail. District Judge on the Board,

pointed out that the Supreme Court had directed that persons who had

committed murder of women and children and those convicted under

NDPS need not be considered for release. The Chairman also opined

that those convicted for murder of women and children, and murder

with rape, ought not to be recommended. However, a non-official

member pointed out that he had undergone over 24 years of actual

imprisonment, had been considered by the Board 5 times and 2 times

been recommended for release, and may be given special

consideration for release on humanitarian grounds. Given his age and

long incarceration, the Petitioner’s case was thereafter recommended

unanimously for premature release.

STATE GOVERNMENT DECISION

Date of decision

Government’s decision relating to the petitioner

06.07.2019

Pursuant to Advisory Board’s recommendation dated 10.01.2017,

Petitioner’s case (along with the other three convicts) was rejected

without assigning any reasons.

22.04.2021

Pursuant to Advisory Board’s recommendation dated 26.02.2020, file

relating to all 20 persons recommended for release, returned for

further action.

01.09.2022

Pursuant to Advisory Board’s recommendation dated 07.03.2022,

petitioner’s case (along with 7 others) was rejected without assigning

any reasons.

6.The State in its counter affidavit explained its position - that while the

petitioner has been considered for premature release 9 times, his case has been

rejected repeatedly because:

“while considering proposal for premature release of prisoners, the

consistent stand now being adopted by the Government is that persons

involved in the murder of women and children and persons convicted in

5

offences relating to POCSO cases shall not be granted premature release.

Since the petitioner involved in the murder of a woman his premature

release was rejected by Government in accordance with the above stand.”

(emphasis

supplied)

Further, that in 2020, general guidelines were to be framed by a specially

constituted committee

5

for determining the eligibility of prisoners with regards

to grant of premature release. This committee finally proposed premature

release of 67 convicts (from those who had earlier been rejected for whatever

reason) after assessing their individual cases. The state government by its

proceeding dated 20.04.2022, approved the proposal excluding certain convicts

who had been involved in: most cruel murder, committed murder of woman and

children, or murder with rape, and those undergoing treatment for mental

illness, whose relatives were reluctant to receive them. These restrictions, along

with other more detailed guidelines, have been incorporated in a government

order

6

dated 04.06.2022 issued by the Home Department of the State of Kerala.

7.On 01.09.2022, the state government rejected for the third time, the

Advisory Board’s recommendation to release the petitioner. Aggrieved, the

petitioner has preferred the present writ petition.

Contentions of parties

8.Mr. Adolf Mathew, learned counsel appearing on behalf of the petitioner,

challenged the state government’s repeated rejection of his plea for premature

release. It was pointed out that the remission policy prevailing on the date of the

conviction would have to apply. Attention was drawn to Rule 545A of the 1958

Rules which stipulates release can be considered after 14 years; Rule 216(1),

244(2) and 299(c) of the 1958 Rules which state that the inmate shall be

released after completion of 20 years of sentence; and the recommendations of

5 This committee consisted of Additional Chief Secretary Home & Vigilance Department as Chairman, Law

Secretary, and Director General of Prions and Correctional Services as Members.

6 G.O.(Ms.) NO. 116/2022/HOME dated 14.06.2022.

6

the National Human Rights Commission (NHRC) which prescribes mandatory

release after 25 years of sentence. Furthermore, even in terms of Rule 377 of the

new Prison Rules, 2014, the petitioner is entitled to release after 20 years. It was

argued that since the petitioner has not only completed 14 years or 20 years, but

even 25 years of actual imprisonment, at this juncture - regardless of which

rules are applied, it was manifestly illegal to keep him incarcerated in

perpetuity.

9.Mr. Mathew strongly opposed the state’s policy dated 14.06.2022 (and

executive instruction dated 20.04.2022 cited in the state’s counter affidavit)

which listed certain crimes, the commission of which put the convict beyond the

scope for grant of remission. The executive instruction (which explicitly

prohibits the release of a prisoner involved in the “murder of a woman”), it was

argued – not only came after his completion of 25 years of incarceration, but in

any case could not override the statutory provisions. Counsel submitted that the

petitioner had a legal right to be considered for remission given the safeguards

of a convict under Articles 20 and 21 of the Constitution of India; this legal

right was guaranteed by the Prison Act, and the Rules framed under it.

10.Relying on replies received (under the Right to Information Act, 2005)

from the respective jails in which the petitioner has been lodged – counsel

demonstrated that from 2000-2016, a total of 28 convicts sentenced to life

imprisonment, who were involved in the murder of a woman, had been granted

premature release. However, despite being recommended three times by the

Advisory Board with detailed remarks on his reformation, the State government

had rejected his case for premature release without assigning any reasoning, in

its orders. This, it was argued, was grounds for setting aside these orders.

11.Lastly, counsel pointed to material produced by the respondent state

itself, to demonstrate that the Jail Advisory Board had found the petitioner, who

7

is aged 67 years old, to be hardworking, disciplined, and reformed, and prayed

for his premature release.

12.To supplement his submissions, counsel placed reliance on various

judgments of this court, including – State of Haryana v. Jagdish

7

, Maru Ram, v.

Union of India

8

, General Officer Commanding-in-Chief v. Subhash Chandra

Yadav

9

, State of Haryana v. Mahender Singh

10

, and State v. H. Nilofer Nisha

11

.

13.Mr. Jaideep Gupta, learned senior counsel, appearing on behalf of the

state, submitted that the petitioner cannot claim a fundamental right to be

released on remission, and that the prayer sought in the writ petition – for this

court’s direction to the government to release him – was simply not

maintainable.

14.Counsel argued that grant of remission, is solely at the executive’s

discretion, and an act of mercy, granted on account of good conduct and term of

imprisonment. It is not an indefeasible right; rather the convict only has a right

to be considered for remission, which he had been, in the present case. The

decision, however, of whether to be granted remission, was an act of exercising

discretion which solely fell within the domain of the executive.

15.Mr. Gupta drew attention to the nature of the crime – that it was

premediated and cold-blooded murder, with robbery. The assault of an innocent

young woman by someone she reposed trust in, her brother-in-law no less, who

proceeded to rob her belongings and lay her to her death in such a horrific

manner, it was argued was one which shocked the collective conscience of

society. Mr. Gupta submitted that these factors, which no doubt weighed on the

sentencing court (which did not grant the death penalty), must also weigh on the

state authority granting remission, to guide its exercise of discretion.

7 [2010] 3 SCR 716

8 [1981] 1 SCR 1196

9 [1988] 3 SCR 62

10 [2007] 11 SCR 932

11 (2020) 14 SCC 161

8

16.Counsel for the State, relied on the following judgments to persuade this

court – Ramdas Athawale v. Union of India

12

, Union of India v. V. Sriharan

13

,

State of Haryana v. Mahender Singh (supra), Swamy Shraddananda (2) @

Mural Manohar Mishra v. State of Karnataka

14

, State of Madhya Pradesh v.

Ratan Singh

15

and Rajan v. The Home Secretary, Home Department of Tamil

Nadu

16

.

Analysis and conclusion

A.Applicable statutory provisions, rules, etc.

17.The Travancore-Cochin Prison Act came into force on 06.06.1950. By

virtue of Sections 3(5) and 59(4), the state government enacted the 1958 Rules

on 26.07.1958. The Kerala Prisons and Correctional Services (Management)

Act, 2010 [hereafter ‘2010 Act’] came into force on 12/14.05.2010. By virtue of

Section 102(2) of this Act (the savings clause) the 1958 Rules were to continue

till the commencement of the new rules (i.e., the 2014 Rules), on

06/23.05.2014. On 14.06.2022, a government order was issued containing

general guidelines on premature release, classifying prisoners such that those

who had committed certain offences could not be released prematurely, while

others, could only be considered after 25 years. This government order also,

incorporated an executive instruction dated 20.04.2022 which excluded those

involved in “murder of a woman” among other crimes, from the grant of

premature release. Section 433-A of the CrPC, is also applicable to the extent

that it forecloses the option of statutory remission until the convict who has

been convicted for an offence punishable by life imprisonment (or commuted

death sentence) has served 14 years of actual imprisonment.

12 [2010] 3 SCR 1059

13 [2015] 14 SCR 613

14 [2008] 11 SCR 93

15 [1976] Supp. 1 SCR 552

16 [2019] 6 SCR 1035

9

18.Section 77

17

of the 2010 Act empowers the state government to, either

suo moto or on recommendation of an Advisory Committee, prematurely release

well-behaved, long term convicted prisoners with the objective of their better

reformation and rehabilitation, as per prescribed rules. Rule 462 to 468 of the

2014 Rules, detail the procedure to be followed by the Advisory Committee

while considering convicts for premature release. Whenever a prisoner

completes 14 years actual imprisonment, they become eligible for consideration

for premature release [ref: Rule 464(iv)

18

]. The Advisory Committee/Board

considers their case in detail, and make recommendations to the state

government, which is empowered under Rule 468 of the 2014 Rules, to admit or

reject the said recommendations.

19.A reading of the observations of this court in State of Haryana v.

Jagdish

19

, which was followed in State of Haryana v. Raj Kumar

20

, makes the

position of law clear: the remission policy prevailing on the date of conviction,

is to be applied in a given case, and if a more liberal policy exists on the day of

consideration, then the latter would apply. This approach was recently followed

by this court in Rajo v. State of Bihar

21

as well.

20.A five-judge bench of this court, in Maru Ram, v. Union of India

22

, when

considering application of Section 433-A CrPC, when the trial court had

acquitted an accused prior to its insertion, but convicted by the appellate court

subsequent to Section 433-A coming into force, held:

17 “77. Premature release. – (1) Well behaved, long term convicted prisoners may be prematurely released

with the objective of their reformation and rehabilitation, by the Government, either suo moto or on the

recommendations of an Advisory Committee as may be prescribed.

(2) The Advisory Committee constituted as per sub-section (1) shall have the powers and duties, as

may be prescribed”.

18 As per sub-clause (iv) to Rule 464 of the 2014 Rules, the Advisory Board is to consider life convicts on

completion of 10 years imprisonment (with remission), unless excluded by Section 433-A CrPC, in which case

they are to be considered after completion of 14 years actual imprisonment.

19 [2010] 3 SCR 716 [paras 35, 43].

20 (2021) 9 SCC 292 [para 16].

21 Judgment dated 25.08.2023 in Writ Petition (Crl.) No. 252/2023 [para 23].

22 [1981] 1 SCR 1196 [para 20].

10

“[…] When a person is convicted in appeal, it follows that the appellate

Court has exercised its power in the place of the original court and the

guilt, conviction and sentence must be substituted for and shall have

retroactive effect from the date of judgment of the trial Court. The

appellate conviction must relate back to the date of the trial Court's

verdict and substitute it. In this view, even if the appellate Court reverses

an earlier acquittal rendered before Section 433-A came into force but

allows the appeal and convicts the accused, after Section 433-A came into

force, such persons will also be entitled to the benefit of the remission

system prevailing prior to Section 433-A on the basis we have explained.

An appeal is a continuation of an appellate judgment as a replacement of

the original judgment.”

21.Therefore, applying the principles laid down in the decisions discussed

above, the date of conviction, though actually on 06.01.1998 – i.e., the day of

the High Court judgment, is deemed to relate back to the date of the trial court

judgment, which was delivered on 23.03.1996. On this date (as was the case

even in 1998 when the High Court passed its judgment), the 1958 Rules were in

force.

22.Much like the 2014 Rules [see Rule 464(iv)], the 1958 Rules similarly

entitle convicts who have completed 14 years, to be considered for premature

release. Rule 545A is extracted below:

“545A. ‘14-Year Rule’.– The cases of ** prisoners whose aggregate

sentence is more than 20 years shall be committed together with the

records specified under Rule 545 for special orders of Government as to

their premature release or completion of 14 years of sentence including

remission in each case.

** “Provided that 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 committed under section 433 of the Code of Criminal

Procedure, 1973 such persons shall not be considered for release from

prison unless he has served at least 14 years of imprisonment.”

23.When it comes to date of release, the 1958 Rules also in various

provisions, fix 20 years, to be the deemed sentence for a convict sentenced to

life imprisonment:

“216. Date of release when two or more sentences run consecutively.–

(1) The sentence of all prisoners sentenced to imprisonment for life or to

11

more than 20 years imprisonment in the aggregate, or to imprisonment,

for terms exceeding in the aggregate or to imprisonment, for terms

exceeding in the aggregate 20 years shall, for the administrative purpose

of calculation of the normal date of release be deemed to be sentence of

imprisonment of 20 years….

244. Tickets to be worn by convicts. – […]

(2)(b) No other particulars, such as stars denoting health or the life shall

be entered thereon, and nothing shall be entered on the back of the ticket.

For convictions under sentence for life date of release shall be taken as 20

years from the date of sentence. In the case of a convict having a term of

alternative imprisonment, the alternative date of release should also be

shown.

299. Definitions in these rules. – […]

(c) The sentence of all prisoners sentenced to imprisonment for life or to

more than twenty years imprisonment in the aggregate or to imprisonment

for terms exceeding in the aggregate twenty years shall for the purpose of

these rules, be deemed to be sentence of imprisonment for twenty years.”

The analogous provision, in relation to ‘deemed’ life imprisonment sentence,

can be found in Rule 377

23

of the 2014 Rules.

B.Analysing the law in the present factual matrix

24.Section 99 of the 2010 Act, empowers the state government to make rules

consistent with the Act, and sub-clause (xxxii) pertains specifically to the

authority which may recommend premature release of prisoners under Section

77. The State government has painstakingly framed these rules. As per Rule 462

of the 2014 Rules, Jail Advisory Boards were constituted in each prison, to

make recommendations for the premature release of prisoners. The composition

of these Boards includes – Director General of Prisons and Correctional

Services as Chairman, Superintendent of Prisons as Member Secretary, and the

District Collector, District & Sessions Judge, Commissioner of Police or

23 “377. Fixation of Conviction Period – (1) The sentence of all prisoners sentenced to imprisonment for life

or to more than twenty years imprisonment in the aggregate or to imprisonment for terms exceeding in the

aggregate twenty years shall for the purpose of remission rules, be deemed to be sentence of imprisonment for

20 years.

(2) A committee shall constituted under Section 72 and sub-section (1) of the Act for the computation of

remission.”

12

District Police Chief, District Probation Officer, and three non-official members

appointed by the government – as members.

25.This diverse Board consisting of relevant stakeholders, after having taken

a holistic view of the petitioner’s case, recommended his premature release on

three different occasions – 10.01.2017, 26.02.2020, and 07.03.2022. Yet, the

state government, has without assigning any reasons – which could have

perhaps demonstrated individual consideration of each case recommended -

simply rejected the same all three times (06.07.2019, 22.04.2021, and

01.09.2022). This is patently unsustainable and warrants intervention of this

court.

26.That the execution of a sentence, is the sole prerogative of the

State/Executive, which may exercise its discretion as granted constitutionally

(Art. 161 and 72 of the Indian Constitution) and statutorily (Section 432 CrPC,

and state enactments), is one that is not in question. However, like all power – it

must be exercised fairly, reasonably and not arbitrarily.

24

27.While the government order dated 04.06.2022 issued by the State of

Kerala is not directly challenged, it is this court’s considered opinion, that it

merits comment, and a note of caution. The relevant part of the government

order, is extracted below:

“I. Category of prisoners who are not be eligible for premature release.

1.Persons who are sentenced for life imprisonment for offences against

the security of the State.

2.Person who are sentenced for life for murder along with rape of a

child below 16 years of age charged with or without POCSO Act

2012.

3.Persons convicted under Narcotic Drugs and Psychotropic Substances

Act.

4.Persons involved in cases in which the Court expressly declares that

the prisoner shall not be granted special remission or amnesty.

5.Persons convicted and sentenced by the courts of other States or UTs.

24 In the context of remission and sentencing, see: State of Haryana v. Mohinder Singh [2000] 1 SCR 698;

Sangeet v. State of Haryana [2012] 13 SCR 85; Union of India v. V. Sriharan [2015] 14 SCR 613; Rajan v. The

Home Secretary, Home Department of Tamil Nadu [2019] 6 SCR 1035; Ram Chander v. State of Chhattisgarh

[2022] 4 SCR 1103.

13

II. Category of prisoners eligible only after completing 25 years of

sentence including all kinds of remission.

1.Convicts who have been imprisoned for life for murder with rape,

murder with dacoity, murder involving any offence under the

protection of Civil Rights Act 1955, murder for dowry, murder of a

child below 14 years of age, multiple murder, murder committed after

conviction while inside jail, murder during parole, murder in terrorist

incident, murder in smuggling operation. Murder of a public servant

on duty, murder with robbery and rape of child below 14 years of age.

2.Gangsters, contract killers, smugglers, drug traffickers awarded life

imprisonment for murders.

3.Convicts whose death sentence has been commuted to life

imprisonment by Hon’ble President of India or Hon’ble Governor.

The prisoners with the following age group and completed sentence and

favourable reports from the Probation Officers are eligible under this

category:-

(a)Prisoners who have attained the age of 55 and completed sentence of

25 years including remission; OR

(b)Prisoners who have completed 23 years of actual sentence.

III. Category of prisoners eligible after 20 years of sentence including

remission

All prisoners who do not come under category I and II shall be eligible for

premature release after 20 years of sentence including remission irrespective

of their age, but on the following conditions.

[…]”

Further, while considering the premature release of certain other convicts

recommended by the Committee, the state government

“decided to approve the proposal, excluding the following category of

prisoners:

1.Persons involved in most cruel murder.

2.Persons who committed murder of women and children, persons who

committed murder with rape.

3.Among the prisoners who are undergoing treatment for mental illness,

the prisoners whose relatives are reluctant to receive them”.

Thus, incorporating in the general guidelines, the three excluded categories as

they appeared in the earlier executive instruction dated 20.04.2022.

28.To issue a policy directive, or guidelines, over and above the Act and

Rules framed (where the latter forms part and parcel of the former), and

14

undermine what they encapsulate, cannot be countenanced. Blanket exclusion

of certain offences, from the scope of grant of remission, especially by way of

an executive policy, is not only arbitrary, but turns the ideals of reformation that

run through our criminal justice system, on its head. Numerous judgments of

this court, have elaborated on the penological goal of reformation and

rehabilitation, being the cornerstone of our criminal justice system, rather than

retribution. The impact of applying such an executive instruction/guideline to

guide the executive’s discretion would be that routinely, any progress made by a

long-term convict would be rendered naught, leaving them feeling hopeless, and

condemned to an indefinite period of incarceration. While the sentencing courts

may, in light of this court’s majority judgment in Sriharan (supra), now impose

term sentences (in excess of 14 or 20 years) for crimes that are specially

heinous, but not reaching the level of ‘rarest of rare’ (warranting the death

penalty), the state government cannot – especially by way of executive

instruction, take on such a role, for crimes as it deems fit.

29.It is a well-recognized proposition of administrative law that discretion,

conferred widely by plenary statute or statutory rules, cannot be lightly fettered.

This principle has been articulated by this court many a time. In U.P. State

Road Transport Corporation & Anr v. Mohd. Ismail & Ors.

25

, this court

observed:

“It may be stated that the statutory discretion cannot be fettered by self-

created rules or policy. Although it is open to an authority to which

discretion has been entrusted to lay down the norms or rules to regulate

exercise of discretion it cannot, however, deny itself the discretion which

the statute requires it to exercise in individual cases.”

30. Likewise, in Chairman, All India Railway Rec. Board & Ors. v. K.

Shyam Kumar & Ors.

26

this court explained the issue, in the following manner:

“Illegality as a ground of judicial review means that the decision maker

must understand correctly the law that regulates his decision making

25 [1991] 2 SCR 274

26 [2010] 6 SCR 291

15

powers and must give effect to it. Grounds such as acting ultra vires,

errors of law and/or fact, onerous conditions, improper purpose, relevant

and irrelevant factors, acting in bad faith, fettering discretion,

unauthorized delegation, failure to act etc., fall under the heading

"illegality". Procedural impropriety may be due to the failure to comply

with the mandatory procedures such as breach of natural justice, such as

audi alteram partem, absence of bias, the duty to act fairly, legitimate

expectations, failure to give reasons etc.”

31.The latitude the Constitution gives to the executive, under Articles 72 and

162, in regard to matters such as remission, commutation, etc, therefore, cannot

be caged or boxed in the form of guidelines, which are inflexible.

32.This court’s observations in State of Haryana v. Mahender Singh

27

are

also relevant here:

“38. A right to be considered for remission keeping in view the

constitutional safeguards under Articles 20 and 21 of the Constitution of

India, must be held to be a legal one. Such a legal right emanates from

not only the Prisons Act but also from the Rules framed thereunder.

39. It is now well-settled that any guidelines which do not have any

statutory flavour are merely advisory in nature. They cannot have the

force of a statute. They are subservient to the legislative act and the

statutory rules.”

(emphasis

supplied)

33.Classifying - to use a better word, typecasting convicts, through

guidelines which are inflexible, based on their crime committed in the distant

past can result in the real danger of overlooking the reformative potential of

each individual convict. Grouping types of convicts, based on the offences they

were found to have committed, as a starting point, may be justified. However,

the prison laws in India – read with Articles 72 and 161 - encapsulate a strong

underlying reformative purpose. The practical impact of a guideline, which bars

consideration of a premature release request by a convict who has served over

20 or 25 years, based entirely on the nature of crime committed in the distant

past, would be to crush the life force out of such individual, altogether. Thus,

for instance, a 19 or 20 year old individual convicted for a crime, which finds

27 (2007) 13 SCC 606

16

place in the list which bars premature release, altogether, would mean that such

person would never see freedom, and would die within the prison walls. There

is a peculiarity of continuing to imprison one who committed a crime years

earlier   who might well have changed totally since that time. This is the

condition of many people serving very long sentences. They may have killed

someone (or done something much less serious, such as commit a narcotic drug

related offences or be serving a life sentence for other non­violent crimes) as

young individuals and remain incarcerated 20 or more years later. Regardless of

the morality of continued punishment, one may question its rationality. The

question is, what is achieved by continuing to punish a person who recognises

the wrongness of what they have done, who no longer identifies with it, and

who bears little resemblance to the person they were years earlier? It is tempting

to say that they are no longer the same person. Yet, the insistence of guidelines,

obdurately, to not look beyond the red lines drawn by it and continue in denial

to consider the real impact of prison good behavior, and other relevant factors

(to ensure that such individual has been rid of the likelihood of causing harm to

society) results in violation of Article 14 of the Constitution. Excluding the

relief of premature release to prisoners who have served extremely long periods

of incarceration, not only crushes their spirit, and instils despair, but signifies

society’s resolve to be harsh and unforgiving. The idea of rewarding, a prisoner

for good conduct is entirely negated.

34.In the petitioner’s case, the 1958 Rules are clear – a life sentence, is

deemed to be 20 years of incarceration. After this, the prisoner is entitled to

premature release.

28

The guidelines issued by the NHRC pointed out to us by the

counsel for the petitioner, are also relevant to consider – that of mandating

release, after serving 25 years as sentence (even in heinous crimes). At this

juncture, redirecting the petitioner who has already undergone over 26 years of

28 See also this court’s order dated 11.10.2018 in Criminal Appeal No. 276-278/2010.

17

incarceration (and over 35 years of punishment with remission), before us to

undergo, yet again, consideration before the Advisory Board, and thereafter, the

state government for premature release – would be a cruel outcome, like being

granted only a salve to fight a raging fire, in the name of procedure. The grand

vision of the rule of law and the idea of fairness is then swept away, at the altar

of procedure - which this court has repeatedly held to be a “handmaiden of

justice”.

35.Rule 376 of the 2014 Rules prescribes that prisoners shall be granted

remission for keeping peace and good behaviour in jail. As per the records

produced by the State, the petitioner has earned over 8 years of remission, thus

demonstrating his good conduct in jail. The discussions in the minutes of the

meetings of the Jail Advisory Board are also positive and find that he is

hardworking, disciplined, and a reformed inmate. Therefore, in the interest of

justice, this court is of the opinion, that it would be appropriate to direct the

release of the petitioner, with immediate effect. It is ordered accordingly.

36.The writ petition, thus, stands allowed in the above terms. Pending

applications, if any, are disposed of.

…….……………….….J.

[S. RAVINDRA BHAT]

....……………………..J.

[DIPANKAR DATTA]

NEW DELHI

SEPTEMBER 21, 2023