1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL) NO.4116 OF 2020
National Alliance for People’s .… Petitioner(s)
Movements & Ors.
Versus
The State of Maharashtra & Ors. …. Respondent(s)
J U D G M E N T
1. The petitioners herein were before the High Court of
Judicature at Bombay claiming to be in Public Interest (PILCJLDVC No.44/2020) seeking that the decision of the
High Powered Committee (‘HPC’ for short) dated 25.03.2020
to the extent of Clauses (iii), (iv) and (vii) of paragraph 8,
decisions/minutes of HPC meeting dated 11.05.2020
excluding certain categories of offences provided in
2
paragraph 5(i) and 5(ii) for the purpose of grant of interim
bail and corrigendum dated 18.05.2020 of the Minutes of
the Meeting of HPC dated 11.05.2020 to the extent of
clarification that the class and/or category of offences
determined by the HPC for temporary release be not read as
a direction made by it for mandatory release of prisoners
falling in that category or class and a further clarification
that the case of every prisoner be considered on case to case
basis for deciding the temporary release of such prisoners.
The petitioners had also sought for a direction to the
respondents to release the prisoners convicted for life
imprisonment without insisting that they have been
released in the past at least twice, either on furlough or
parole.
2. The High Court on making a detailed consideration
has arrived at the conclusion that the decision of the HPC
does not call for interference except to the extent of the
observations that were made in paragraph 36 of the order.
The petitioners, therefore, claiming to be aggrieved are
before this Court in this petition.
3
3. We have heard the learned counsel for the petitioners
and perused the petition papers.
4. Though a detailed consideration has been made by the
High Court whereunder separate concurring reasons are
given by the learned Judges on the Division Bench, it is
necessary to notice that the present issue has arisen only
on the limited scope for grant of interim
bail/parole/furlough due to the unforeseen circumstance of
the pandemic, namely, Novel Coronavirus (Covid19) which
requires decongesting of prisons with the intention of social
distancing to be maintained so as to prevent the spread of
virus. It is in that circumstance, this Court while
registering a Suo Moto Writ Petition (Civil) No.1/2020 had
taken note of the pandemic and in that context also referred
to the decision taken by the Government of India to issue an
advisory regarding social distancing. In that background,
having taken note that there are 1339 prisons in this
country and approximately 4,66,084 inmates are lodged in
such prisons had adverted to the occupancy rate which is
high and, therefore, considering the prisons to be
4
overcrowded had issued certain directions to ensure
decongesting and maintain social distance.
5. At the first instance this Court through the order
dated 16.03.2020 had directed notice to be issued to all the
stakeholders in this regard so as to suggest immediate
measures which should be adopted for the medical
assistance to the prisoners in all jails and the juveniles
lodged in the Remand Homes for protection of their health
and welfare. Subsequently, through the order dated
20.03.2020 this Court inter alia issued the following
directions:
“We direct that each State/Union Territory
shall constitute a High Powered Committee
comprising of (i) Chairman of the State Legal
Services Committee, (ii) the Principal
Secretary (Home/Prison) by whatever
designation is known as, (iii) Director
General of Prison(s), to determine which
class of prisoners can be released on parole
or an interim bail for such period as may be
thought appropriate. For instance, the
State/Union Territory could consider the
release of prisoners who have been convicted
or are undertrial for offences for which
prescribed punishment is up to 7 years or
less, with or without fine and the prisoner
has been convicted for a lesser number of
years than the maximum.
5
It is made clear that we leave it open
for the High Powered Committee to
determine the category of prisoners who
should be released as aforesaid, depending
upon the nature of offence, the number of
years to which he or she has been sentenced
or the severity of the offence with which
he/she is charged with and is facing trial or
any other relevant factor, which the
Committee may consider appropriate.”
6. Pursuant to the direction, a HighPowered Committee
was constituted in respect of the prisons in the State of
Maharashtra, the State in respect of which the present issue
has arisen. The HPC having deliberated has issued the
guidelines dated 25.03.2020 as formulated in its meeting.
The Home Department, Government of Maharashtra has
notified the same on 08.05.2020. As per the guidelines, the
Committee has classified the inmates of the prisons, broadly
into three categories, viz (i) undertrial prisoners/convicted
persons who are facing trial or convicted to the maximum
punishment of 7 years or less, (ii) the convicted persons
whose sentence is above 7 years and (iii) the undertrial
prisoners or convicted persons who are booked for serious
economic offences/bank scams and offences under Special
Acts such as MCOC, PMLA, MPID, NDPS, UAPA etc.
6
7. Thus, having classified the jail inmates to different
categories on such basis, consideration of the ‘nature of the
offence’ and the ‘severity of offence’ has been indicated to be
adopted as the yardstick while considering their case for
grant of interim bail in such situation. The petitioners while
assailing the said guidelines had alleged discrimination in
the categorisation and also unreasonableness in imposing
the condition of earlier release in respect of the convicted
persons for the sentence of more than 7 years. It is relevant
to notice that in fact this Court through the order dated
23.03.2020 had permitted such broad classification for the
purpose of consideration.
8. On the contentions urged and the decisions cited
before the High Court we are of the opinion that the High
Court in fact has appropriately adverted to the same and
has not committed any error in arriving at its conclusion. In
this regard we notice that the High Court has aptly referred
to the decision of this Court in the case of The State of
West Bengal vs. Anwar Ali Sarkar (AIR (39) 1952 SC 75),
Arun Kumar & Ors vs. Union of India & Ors. (2007) 1
7
SCC 732 and K.R. Lakshman & Ors. vs. Karnataka
Electricity Board (2001) 1 SCC 442 wherein the
circumstances when requirement of Article 14 of the
Constitution is to be satisfied is considered in detail. It is
articulated therein that equality before the law or the equal
protection of laws does not mean identity or abstract
symmetry of treatment and that reasonable classification is
permitted. In that background the High Court while
approving the categorisation made by HPC has gathered the
intention of the order dated 23.03.2020 passed by this
Court in its correct perspective.
9. While arriving at such conclusion, in addition to the
reasons assigned by the High Court we cannot also lose
sight of the fact that the entire right to claim such interim
bail has arisen in the unprecedented circumstance of the
pandemic and the consideration for interim bail is not in the
nature of a statutory right for bail based on other legal
consideration but is more in the nature of human right to
safeguard the health. 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
8
the competent court irrespective of the pandemic or not. The
present option provided is only as a solution to help
decongestion and to avoid the spread of virus. At the same
time the benefit granted in such circumstance cannot be to
the detriment of social order by releasing all categories of
prisoners irrespective of the categorisation to be made
depending on the severity of the crime etc. The genesis for
the present claim being the order passed by this Court in a
Suo Motu Writ Petition, a balance was struck. As such, as
noticed from the extracted portion of the order (supra), this
Court had directed the constitution of the HPC consisting of
a senior High Court Judge and highly placed officials so that
an appropriate categorisation be made in each State
dependant on the circumstance arising therein. Further,
the intention of this Court was not that every undertrial or
convicted prisoner is to be released irrespective of the
nature of offence or severity thereof. The consideration was
for the purpose of decongesting the prisons so that social
distancing could be maintained to avoid the spread of virus.
In that circumstance the consideration would certainly be
different in each State/Union Territory depending on the
9
occupancy in the prison, the spread of virus, the
infrastructure available and the need, if any, to release
certain number of prisoners so as to decongest.
10. The above noted intention is manifest in the
subsequent order dated 13.04.2020 passed by this Court,
which reads as hereunder;
“We are informed that the State of Bihar has
not found it appropriate to release the prisoners for
complete absence of any patient suffering from
coronavirus within the prisons and also for the
reason that the prisons are not overcrowded.
Moreover, even in one case the murder of a
prisoner who was “accused” of suffering from
coronavirus has been reported.
We make it clear that we have not directed
that States/Union Territories to compulsorily
release the prisoners from their respective prisons.
The purpose of our aforesaid order was to ensure
the States/Union Territories to assess the situation
in their prisons having regard to the outbreak of
the present pandemic in the country and release
certain prisoners and for that purpose to determine
the category of prisoners to be released.”
11. Therefore, the very purpose of directing each of the
States/Union Territories to constitute a HighPowered
Committee is that the HPC taking note of the subsisting
position in such State will take a decision in the matter as
the HPC will have the wherewithal to secure all details and
10
take a decision. If the said aspect is kept in view, it is
noticed that by the guideline dated 25.03.2020 the
Committee in question has categorised the
undertrials/convicted persons by the nature of the crime
and the length of the punishment which will take care of the
severity in the process of consideration. In that regard,
insofar as the undertrial/convicted persons charged under
the common law, namely, the Indian Penal Code; they are
classified into two categories i.e. category(i) as punishment
below 7 years and category(ii) as punishment above 7 years
so that the consideration could be in that manner. The
Committee has thought it fit to separately classify the
undertrials/convicted persons who are charged under the
Special Enactments irrespective of the duration of
imprisonment notwithstanding the fact that the punishment
imposed could be less than 7 years. In that regard, what
has weighed with the HPC is that such enactments provide
for additional restrictions on grant of bail in addition to
those under the Criminal Procedure Code. The said
categorisation in our view cannot be considered as
unreasonable since at the first instance, based on the
11
categorisation made a consideration is required by the Court
for grant of interim bail if such undertrial/convicted person
is seeking bail purely on taking benefit of the notification
issued pursuant to such decision taken by the HPC. The
exclusion made has a reasonable basis and cannot be
termed arbitrary.
12. As already indicated the present methodology for grant
of the interim bail is with the intention to avoid
overcrowding in the unprecedented circumstance and the
grant of bail in the present circumstances is an additional
benefit to such persons. In that circumstance what has
been curtailed by the HPC by excluding certain categories is
only with a view to deny the benefit to certain category of jail
inmates who are charged with serious offences which has
an adverse effect on the society at large though the length of
the punishment that can be imposed may be lesser. Such
of those persons charged under the special enactments or
convicted for a period, more than 7 years in any event if
they are not otherwise disentitled to bail in a normal
circumstance could still seek for bail in accordance with law
12
and cannot treat the pandemic as fortuitous circumstance
to secure bail to which they were otherwise not entitled to
in law by claiming equal treatment. All that the HPC has
denied them is the benefit of seeking interim bail only on
the ground that they are entitled to be released on bail in
view of the Covid19 situation and no other legal right has
been denied. Therefore, in the circumstance where the
present consideration for bail is not provided under a
statute but is made available based on the order passed by
this Court and further, when a known criteria is formulated
by the HPC, which had all materials before it, an
interference with the same in a petition of the present
nature in any event would not have arisen and the High
Court was accordingly justified in its conclusion.
13. That apart, keeping in perspective the object with
which the interim bail was ordered to be considered for the
purpose of avoiding overcrowding, the High Court has taken
note of the factual position that as on 24.07.2020, as per
details furnished, 10338 prisoners were released on interim
bail/parole and presently 26,279 prisoners are in prison.
13
Since it was contended on behalf of the petitioners that the
official capacity is only 23,217, the State Government had
indicated that temporary prisons have been set up in 36
locations and about 2597 prisoners are occupying the same
as of now and more will be shifted to avoid overcrowding in
the existing prisons, which indicates that appropriate steps
are being taken to achieve the object.
14. Having stated so it is necessary to indicate 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
categorisation made by the HPC. That apart the intention
being to decongest the prisons, as a first step the release of
the prisoners based on the impugned guidelines, held to be
unflawed would be made. If, despite the release of the
undertrial/convicted prisoners in the categories presently
made does not achieve the purpose and the fact that
additional prisons are set up also does not suffice and in
that context if any modification with regard to the categories
14
made by HPC is necessary; certainly it would be open for
the HPC to take note of the same and apply their mind to
modify its guidelines in that regard.
15. Therefore, it would still be open for the petitioners to
obtain necessary statistics and if any modification of the
guidelines is necessary in future, they will be at liberty to
submit an appropriate representation to the HPC which
would in that circumstance look into the same and arrive at
a conclusion at its discretion depending on the need or
otherwise to modify its guidelines. In that view, we are of
the opinion that when such factual consideration to achieve
the object alone is necessary and the HPC is constituted for
the very purpose, interference in a judicial proceeding of the
present nature to alter the criteria would not arise unless it
is shown to be so arbitrary that no reasonable person can
accept. But in circumstances where there is any
individuous 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
15
when grievance is raised by the person who is denied the
benefit if he/she is entitled to such benefit.
16. With the aforestated observations, the above petition
stands dismissed. No order as to costs. Pending
application, if any, stands disposed of.
..…………....................CJI.
(S. A. Bobde)
…..…………....................J.
(A. S. Bopanna)
..…..………......................J.
(V. Ramasubramanian)
September 22, 2020
New Delhi
