Blanket Exclusion Of Certain Offences From State's Remission Policy Is Arbitrary, Against Ideals Of Reformation: Supreme Court
The Supreme Court recently, while ordering the release of a convict who had spent more than 26 years in jail, raised concerns over the recent government order issued by the State of Kerala on June 4, 2022, pertaining to the premature release of convicts. While this order was not directly challenged in the case at hand, the Court deemed it necessary to comment on it and issue a note of...
The Supreme Court recently, while ordering the release of a convict who had spent more than 26 years in jail, raised concerns over the recent government order issued by the State of Kerala on June 4, 2022, pertaining to the premature release of convicts. While this order was not directly challenged in the case at hand, the Court deemed it necessary to comment on it and issue a note of caution.
The State Government's policy excluded the benefit of premature release to prisoners falling into three categories: those involved in heinous murders, those who committed murder of women and children, and those who committed murder along with rape.
The Court held that the blanket exclusion of certain offenses from the possibility of remission, particularly through executive policy, raises significant concerns. It deemed this approach arbitrary and fundamentally at odds with the principles that underpin the criminal justice system, especially those of reformation and rehabilitation. The Court emphasized that the objective of reformation should always supersede retribution in the justice system
“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", the Court observed.
The bench comprising Justices S Ravindra Bhat and Justice Dipankar Datta was hearing a writ petition under Article 32 of the Constitution contending that denial of premature release to the petitioner who’s undergone more than 26 years in jail violates Articles 14 and 21.
The Court firmly stated that the State government cannot assume the role of determining sentences for crimes based on its discretion by passing such guidelines, especially when sentencing courts are fully empowered to perform this crucial function.
It opined, “While the sentencing courts may, in light of this court’s majority judgment in Union of India v. Sriharan  14 SCR 613, 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.”
The Court cited administrative law principles, emphasizing that discretion conferred by statute or statutory rules should not be unduly restricted. The discretion should be exercised in individual cases according to the requirements of the law
It referred to U.P. State Road Transport Corporation & Anr v. Mohd. Ismail  2 SCR 274 which held: “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.”
Furthermore, the Court noted that the Constitution grants the executive certain powers under Articles 72 and 162, particularly in matters of remission and commutation. However, these powers should not be constrained by rigid guidelines.
It relied on State of Haryana v. Mahender Singh which held that, “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.”
The Court emphasized that the reformative potential of each convict should be considered individually. It opined that such inflexible guidelines which bar consideration of premature release requests based solely on the nature of the crime committed years ago, can have a devastating impact on individuals who may deserve a second chance at freedom.
It observed , “Classifying - to use a better word, typecasting convicts, through guidelines that 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 offenses 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.”
In light of these observations, the petition for the release of the convict was allowed.
Case title: Joseph v. State of Kerala
Citation: 2023 LiveLaw (SC) 815; 2023INSC843
For petitioner: Advocate Adolf Mathew, Advoate-on-Record Sanjay Jain