JOSEPH [APPELLANT(S)] Vs. THE STATE OF KERALA & ORS. [RESPONDENT(S)]

WRIT PETITION (CRIMINAL) NO(S). 520 OF 2022
(2JB, S. RAVINDRA BHAT and DIPANKAR DATTA, delivered by S. RAVINDRA BHAT, J.)

Facts: 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 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).

Issue: Whether the appellant’s plea for premature release deserve to be granted relief in?

Arguments on behalf of counsel for appellants: 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 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 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. Mr. Mathew strongly opposed the state’s policy dated 14.06.2022 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.

Arguments on behalf of counsel for respondents: 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. 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. 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. Counsel for the State, relied on the following judgments to persuade this court – Ramdas Athawale v. Union of India, Union of India v. V. Sriharan, State of Haryana v. Mahender Singh.

Held: The court allowed the present writ petition and held that, “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.”

The court observed that, “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. 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”.”