[2023] 12 S.C.R. 505 : 2023 INSC 843
JOSEPH
v.
THE STATE OF KERALA & ORS.
(Writ Petition (Criminal) No(s). 520 of 2022)
SEPTEMBER 21, 2023
[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
Issue for consideration: Whether the writ petition filed by the
petitioner seeking appropriate direction to the State Government,
to prematurely release him, having been in custody-actual
imprisonment for over 26 years, and served a sentence of over
35 years including over 8 years of remission earned, for offence
punishable u/ss. 302 and 392 IPC, should be allowed.
Premature release – Convict served over 26 years in actual
imprisonment and served 35 years of sentence including 8
years of remission earned for offences punishable u/ss. 302
and 392 – Case rejected for premature release thrice by the
State Government – Writ petition seeking direction to the State
Government to prematurely release him:
Held: Inflexible guidelines 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,
prison laws in India read with Arts. 72 and 161 encapsulate a
strong underlying reformative purpose – Insistence of guidelines,
and denial to consider the real impact of prison good behavior,
and other relevant factors results in violation of Art. 14 – 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 – Idea of rewarding, a prisoner for good conduct is
entirely negated – r. 376 of the 2014 Rules prescribes that prisoners
shall be granted remission for keeping peace and good behaviour
in jail – Redirecting the petitioner who has already undergone over
26 years of incarceration and over 35 years of punishment with
remission, to undergo, again, consideration before the Advisory
* Author
506 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
Board, and thereafter, State Government for premature release,
would be cruel – Petitioner has earned over 8 years of remission,
thus demonstrates good conduct in jail – Discussions of the Jail
Advisory Board are also positive and shows that he is a reformed
inmate – Thus, in the interest of justice, issuance of direction to
release the petitioner – Kerala Prison Rules, 1958 – Kerala Prisons
and Correctional Services (Management) Rules, 2014 – rr 462 to
468. [Paras 33-35]
Remission – Grant of remission – Scope of:
Held: Blanket exclusion of certain offences, from the scope of
grant of remission, by way of an executive policy, is arbitrary and
against the ideals of reformation that run through the criminal justice
system – Penological goal is of reformation and rehabilitation rather
than retribution – Impact of applying such an executive instruction/
guideline would be that any progress made by a long-term convict
would leave them feeling hopeless, and condemned to an indefinite
period of incarceration. [Para 28]
Remission – Remission policy – Application of:
Held: 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. [Para 19]
Administrative law – Discretion conferred widely by plenary
statute or statutory rules:
Held: Cannot be lightly fettered. [Para 29]
State of Haryana v. Jagdish [2010] 3 SCR 716; Maru
Ram, v. Union of India [1981] 1 SCR 1196; General
Officer Commanding-in-Chief v. Subhash Chandra Yadav
[1988] 3 SCR 62; State of Haryana v. Mahender Singh
[2007] 11 SCR 932; State v. H. Nilofer Nisha (2020)
14 SCC 161:[2020] 1 SCR 456; Ramdas Athawale v.
Union of India [2010] 3 SCR 1059; Union of India v. V.
Sriharan [2015] 14 SCR 613; Swamy Shraddananda (2)
@ Mural Manohar Mishra v. State of Karnataka [2008]
11 SCR 93; State of Madhya Pradesh v. Ratan Singh
[1976] Supp. 1 SCR 552; Rajan v. The Home Secretary,
Home Department of Tamil Nadu [2019] 6 SCR 1035;
State of Haryana v. Raj Kumar (2021) 9 SCC 292;
[2023] 12 S.C.R. 507
JOSEPH v. THE STATE OF KERALA & ORS.
Rajo v. State of Bihar Judgment dated 25.08.2023 in
Writ Petition (Crl.) No. 252/2023; State of Haryana v.
Mohinder Singh [2000] 1 SCR 698; Sangeet v. State
of Haryana [2012] 13 SCR 85; Ram Chander v. State
of Chhattisgarh [2022] 4 SCR 1103; U.P. State Road
Transport Corporation & Anr v. Mohd. Ismail & Ors.
[1991] 2 SCR 274; Chairman, All India Railway Rec.
Board & Ors. v. K. Shyam Kumar & Ors. [2010] 6 SCR
291 – referred to.
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Criminal)
No.520 of 2022
(Under Article 32 of The Constitution of India)
Adolf Mathew, Sanjay Jain, Advs. for the Petitioner.
Jaideep Gupta, Sr. Adv., Harshad V Hameed, Dileep Poolakkot,
Subhash Chandran K.R., Mrs. Ashly Harshad, Advs. for the
Respondents.
The Judgment of the Court was delivered by
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.
508 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
3. The petitioner was arrested on 09.10.1994 in connection with the
case and remained in custody till the trial court1 acquitted him of
all charges on 23.03.1996. The High Court2
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
court3
, 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
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.
[2023] 12 S.C.R. 509
JOSEPH v. THE STATE OF KERALA & ORS.
under prevailing Rules4
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.
4 Kerala Prison Rules, 1958 (hereafter ‘1958 Rules’) and Kerala Prisons and Correctional Services
(Management) Rules, 2014 (hereafter ‘2014 Rules’).
510 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 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.
[2023] 12 S.C.R. 511
JOSEPH v. THE STATE OF KERALA & ORS.
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 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 committee5
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 order6
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.
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.
512 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 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
[2023] 12 S.C.R. 513
JOSEPH v. THE STATE OF KERALA & ORS.
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 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. Jagdish7
,
Maru Ram, v. Union of India8
, General Officer Commanding-in-Chief
v. Subhash Chandra Yadav9
, State of Haryana v. Mahender Singh10,
and State v. H. Nilofer Nisha11.
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
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
514 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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.
16. Counsel for the State, relied on the following judgments to persuade
this court – Ramdas Athawale v. Union of India12, Union of India v.
V. Sriharan13, State of Haryana v. Mahender Singh (supra), Swamy
Shraddananda (2) @ Mural Manohar Mishra v. State of Karnataka14,
State of Madhya Pradesh v. Ratan Singh15 and Rajan v. The Home
Secretary, Home Department of Tamil Nadu16.
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
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
[2023] 12 S.C.R. 515
JOSEPH v. THE STATE OF KERALA & ORS.
an offence punishable by life imprisonment (or commuted death
sentence) has served 14 years of actual imprisonment.
18. Section 7717 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.
Jagdish19, which was followed in State of Haryana v. Raj Kumar20,
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 Bihar21 as well.
20. A five-judge bench of this court, in Maru Ram, v. Union of India22,
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].
516 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
“[…] 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:
[2023] 12 S.C.R. 517
JOSEPH v. THE STATE OF KERALA & ORS.
“216. Date of release when two or more sentences run
consecutively.– (1) The sentence of all prisoners sentenced to
imprisonment for life or to 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 37723 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
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.”
518 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 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.
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.
[2023] 12 S.C.R. 519
JOSEPH v. THE STATE OF KERALA & ORS.
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.
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.
[…]”
520 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 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.
[2023] 12 S.C.R. 521
JOSEPH v. THE STATE OF KERALA & ORS.
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 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 Singh27
are also relevant here:
25 [1991] 2 SCR 274
26 [2010] 6 SCR 291
27 (2007) 13 SCC 606
522 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
“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 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 non-violent 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
[2023] 12 S.C.R. 523
JOSEPH v. THE STATE OF KERALA & ORS.
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 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
28 See also this court’s order dated 11.10.2018 in Criminal Appeal No. 276-278/2010.
524 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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.
Headnotes prepared by: Nidhi Jain Result of the case: Writ petition allowed.
