Ramesh vs State (NCT of Delhi) & Anr.

I. INTRODUCTION

“… … Capital punishment kills a man at once, but lifelong imprisonment kills him slowly. Which executioner is the more humane, he who kills you in a few minutes or he who drags the life out of you in the course of many years?” - Anton Chekhov in ‘The Bet’

II. BRIEF BACKGROUND

III. SUBMISSIONS ON BEHALF OF AMICUS-CURIAE

432.

Power to suspend or remit sentences.—(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2)

Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

(3)

If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

(4)

The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

(5)

The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with:

Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and—

(a)

where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or

(b)

where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.

(6)

The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property.

(7)

In this section and in section 433, the expression “appropriate Government” means,—

(a)

in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b)

in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

(emphasis supplied)

433.

Power to commute sentence.—The appropriate Government may, without the consent of the person sentenced, commute—

(a)

a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

(b)

a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c)

a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d)

a sentence of simple imprisonment, for fine.

433A. Restriction on powers of remission or commutation in

certain cases.—Notwithstanding anything contained in section 432, 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 commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

(emphasis supplied)

Eligibility for premature release

III.1. Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of Section 433A Cr.PC shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment i.e., without the remissions. It is however, clarified that completion of 14 years in prison by itself would not entitle a convict to automatic release from the prison and the Sentence Review Board shall have the discretion to release a convict, at an appropriate time in all cases considering the circumstances in which the crime was committed and other relevant factors like:

a)

Whether the convict has lost his potential for committing crime considering his overall conduct in jail during the 14 year incarceration;

b)

The possibility of reclaiming the convict as a useful member of the society; and

c)

Socio-economic condition of the convict’s family.

Such convict as stand convicted of a capital offence are prescribed the total period of imprisonment to be undergone including remission, subject to a minimum of 14 years of actual imprisonment before the convict prisoner is released. Total period of incarceration including remission in such cases should ordinarily not exceed 20 years.

Certain categories of convicted prisoners undergoing life sentence would be entitled to be considered for premature release only after undergoing imprisonment for 20 years including remissions. The period of incarceration inclusive of remissions even in such cases should not exceed 25 years. Following categories are mentioned in this connection.

a)

Convicts who have been imprisoned for life for murder in heinous crimes such as murder with rape, murder with dacoity, murder involving an 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 the jail, murder during parole, murder in a terrorist incident, murder in smuggling operation, murder of a public servant on duty.

b)

Gangsters, contract killers, smugglers, drug traffickers, racketeers awarded life imprisonment for committing murders as also the perpetrators of murder committed with pre-meditation and with exceptional violence or perversity.

c)

Convicts whose death sentence has been commuted to life imprisonment.

III.2. All other convicted male prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment would be entitled to be considered for premature release after they have served at least 14 years of imprisonment inclusive of remission but only after completion of 10 years actual imprisonment i.e., without remissions.

III.3. The female prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment would be entitled to be considered for premature release after they have served at least 10 years of imprisonment inclusive of remissions but only after completion of 7 years actual imprisonment i.e., without remissions.

III.4. Cases of premature release of persons undergoing life imprisonment before completion of 14 years of actual imprisonment on grounds of terminal illness or old age etc. can be dealt with under the provisions of Art. 161 of the Constitution of India.

4.

The following procedure shall be followed for processing the cases for consideration of the Board:-

(i)

Every Superintendent of a Jail in the Union Territory of Delhi who has prisoner(s) undergoing sentence of imprisonment for life shall initiate the case of the prisoners at least 6 months in advance of the date when the prisoner would become eligible for consideration of premature release as per the criteria laid down by the State Government in that behalf.

(ii)

The Superintendent of the Jail shall prepare a comprehensive note in each case mentioning the family and social background of the prisoner along with the offence for which he was convicted and sentenced and the circumstances under which the offence was committed. He will also project clearly the particulars of the conduct and behavior of the prisoner in the jail during the period of his incarceration, behavioral conduct during the period he was released on probation leave/parole change in his behavioral pattern, and offences, if any, committed by him in jail and punishment awarded to him for such offence(s). A report shall also be made about his physical and mental health or any serious ailment from which the prisoner is suffering, entitling his case for special consideration for premature release. The note shall also contain recommendations of the Jail Superintendent on whether or not he favours for the premature release of the prisoner and in either case it shall be supported by adequate reasons.

(iii)

The Superintendent of the jail shall make a reference to the Deputy Commissioner of Police/Superintendent of Police of the district, where the prisoner was ordinarily residing at the time of the commission of the offence for which he was convicted and sentenced or where he is likely to resettle after his release from the jail. However in case the place where the prisoner was ordinarily residing at the time of commission of the offence is different from the place where he committed the offence, a reference shall also be made to the Deputy Commissioner of Police/Superintendent of Police of the district in which the offence was committed. In either case, he shall forward a copy of the note prepared by him to enable the Deputy Commissioner of Police/Superintendent of Police to express his views in regard to the desirability of the premature release of the prisoner.

(iv)

On receipt of the reference, the concerned Deputy Commissioner of Police/Superintendent of Police shall cause an inquiry to be made in the matter through a senior police officer of appropriate rank and based on his own assessment shall make his recommendations. While making the recommendations the Deputy Commissioner of Police/the Superintendent of Police shall not act mechanically and oppose the premature release of the prisoner on untenable and hypothetical grounds/apprehensions. In case the concerned Deputy Commissioner of Police/Superintendent of Police is not in favour of the premature release of the prisoner, he shall justify the same with cogent reasons and material. He shall return the reference to the Superintendent of the concerned jail not later than 30 days from the receipt of the reference.

(v)

The Superintendent of Jail shall also make a reference to the Chief Probation Officer and shall forward to him a copy of his note. On receipt of the reference, the Chief Probation Officer shall either hold or cause to be held an inquiry through a Probation Officer in regard to the desirability of premature release of the prisoner having regard to his family and social background, his acceptability by his family members and the society, prospects of the prisoner for rehabilitation and leading a meaningful life as a good citizen. He will not act mechanically and recommend each and every case for premature release. In either case he should justify his recommendation by reasons material. The Chief Probation Officer shall furnish his report with recommendations to the Superintendent of Jail not later than 30 days from the receipt of the reference.

(vi)

On receipt of the report recommendations of the Deputy Commissioner of Police/the Superintendent of Police and Chief Probation Officer, the Superintendent of Jail shall put up the case to the Director General of Prisons at least one month in advance of the proposed meeting of the Sentence Review Board. The Director General of Prisons shall examine the case, bearing in mind the report recommendations of the Superintendent of Jail. Deputy Commissioner of Police/Superintendent of Police and the Chief Probation Officer shall make his own recommendations with regard to the premature release of the prisoner or otherwise keeping in view the general or special guidelines laid down by the Government for the Sentence Review Board. Regard shall also be had to various norms laid down and guidelines given by the Apex Court and various High Courts in the matter of premature release of prisoners.

5.

The Board shall follow the following Procedure and Guidelines while reviewing the cases and making its recommendation to the competent authority:-

(i)

The Director General of Prisons shall convene a meeting of the Sentence Review Board on a date and time advance notice of which shall be given to the Chairman and Members of the Board at least ten days before the scheduled meeting and it shall accompany the complete agenda papers i.e. the note of the Superintendent of Jail, recommendations of the Deputy Commissioner of Police/Superintendent of Police, Chief Probation Officer and that of the Director General of Prisons alongwith the copies of documents if any.

(ii)

A meeting shall ordinarily be chaired by the Chairman and if for some reasons he is unable to be present in the meeting, it shall be chaired by the Principal Secretary (Home). The Member Secretary (Director General of Prisons) shall present the case of each prisoner under consideration before the Sentence Review Board. The Board shall consider the case and take a view. As far as practicable, the Sentence Reviewing Board shall endeavor to make unanimous recommendation. However, in case of a dissent, the majority view shall prevail and will be deemed to be decision of the Board.

(iii)

While considering the case of premature release of a particular prisoner, the Board shall keep in view the general principles of amnesty/remission of the sentence as laid down by the Government or by Courts as also the earlier precedents in the matter. The paramount consideration before the Sentence Review Board being the welfare of the prisoner and the society at large. The Board shall not ordinarily decline a premature release of a prisoner merely on the ground that the police have not recommended his release. The Board shall take into account the circumstances in which the offence was committed by the prisoner and whether he has the propensity and is likely to commit similar or other offence again.

(iv)

Rejection of the case of a prisoner for premature release on one or more occasions by the Sentence Review Board will not be a bar for reconsideration of his case. However, the reconsideration of the case of a convict already rejected shall be done only after the expiry of a period of not less than Six months from the date of last consideration of his case.

(v)

The recommendation of the Sentence Review Board shall be placed before the competent authority without delay for consideration. The competent authority may either accept the recommendations of the Sentence Review Board or reject the same on grounds to be stated or may ask the Sentence Review Board to reconsider a particular case. The decision of the competent authority shall be communicated to the concerned prisoner and in case the Competent authority has ordered grant of remission and ordered his premature release, the prisoner shall be released forthwith, with or without conditions.

1244. The primary objective underlying premature release is reformation of offenders and their rehabilitation and integration into the society, while at the same time ensuring the protection of society from criminal activities. These two aspects are closely interlinked. Incidental to the same is the conduct, behavior and performance of prisoners while in prison. These have a bearing on their rehabilitative potential and the possibility of their being released by virtue of remission earned by them, or by an order granting them premature release. The most important consideration for premature release of prisoners is that they have become harmless and now have become eligible as useful member of a civilized society.

1245. Premature release of prisoners can be of following four types:-

I. By way of commutation of sentence of life convict and other convict under Section 433 of the Code of Criminal Procedure, 1973 by the Government.

II. By way of remitting sentence of a prisoner under Section 432 of the Code of Criminal Procedure, 1973 by the Government.

III. By order of the Head of the State passed exercising power under Article 72 or Article 161 of the Constitution of India, as the case may be.

IV. Premature release under any special law enacted by the State providing for release on probation of good conduct prisoners after they have served a part of the sentence.

1246. For premature release under Rules 1245 (I) & 1245 (II)of life convicts, the rules as prescribed in this chapter may be followed.

* * * * *

Periodicity of the SRB’s meetings

1249. SRB should meet at least once in three months at the notified place on a date to be noticed to its members at least 10 days in advance by the Member Secretary. The notice of such meeting shall be accompanied by complete agenda papers.

1250. However, the Chairman of the SRB can convene a meeting of the Committee more frequently, even at short notices, if necessary.

Eligibility for premature release

1251. Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of Section 433A Cr.P.C shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment i.e. without the remissions. It is, however, clarified that completion of 14 years in prison by itself would not entitle a convict to automatic release from the prison and the Sentence Review Board shall have the discretion to recommend to release a convict, at an appropriate time in all cases considering the circumstances in which the crime was committed and other relevant factors like:-

a)

Whether the convict has lost his potential for committing crime considering his overall conduct in Jail during the 14 year incarceration.

b)

The possibility of reclaiming the convict as a useful member of the society and

c)

Socio-Economic condition of the Convict’s family.

1252. Certain categories of convicted prisoners undergoing life sentence would be entitled to be considered for premature release only after undergoing imprisonment for 20 years including remissions but not less than 14 years of actual imprisonment. The following categories are mentioned in this connection:-

a)

Convicts who have been imprisoned for life for murder in heinous crimes such as murder with rape, murder with dacoity, murder involving an 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 the Jail, murder during parole or furlough, murder in a terrorist incident, murder in smuggling operation, murder of a public servant on duty.

b)

Gangsters, contract killers, smugglers, drug traffickers, racketeers awarded life imprisonment for committing murders as also the perpetrators of murder committed with pre-meditation and with exceptional violence or perversity.

c)

Convicts whose death sentence has been commuted to life imprisonment.

1253. All other convicted male prisoners not covered by Section 433A of code undergoing the sentence of life imprisonment would be entitled to be considered for premature release after they have served at least 14 years of imprisonment inclusive of remission but only after completion of 10 years actual imprisonment i.e. without remissions.

1254. The female prisoners not covered by Section 433A CrPC undergoing the sentence of life imprisonment would be entitled to be considered for premature release after they have served at least 10 years of imprisonment inclusive of remissions but only after completion of 7 years actual imprisonment i.e. without remissions.

1255. Cases of premature release of persons undergoing life imprisonment before completion of 14 years of actual imprisonment on ground of terminal illness or old age etc. may be dealt with under the provisions of Article 72 of the Constitution of India.

Procedure

1256. The Procedure to be followed for eventual consideration by the SRB under the rules for every life convict eligible shall be as follows:-

i.

Every Superintendent in charge of a prison shall initiate the case of a prisoner at least three months in advance of his/her becoming eligible for consideration for premature release as per the criteria laid down for eligibility of premature release of life convicts.

ii.

The Superintendent prison shall prepare a comprehensive note for each prisoner, giving his family and societal background as per the record of the case, the offence for which he was convicted and sentenced and the circumstances under which the offence was committed. The Superintendent shall also reflect fully on the conduct and behavior of the prisoner in the prison during the period of his incarceration, and during his/release on probation/leave, change in his/behavioral pattern, and prison offences, if any, committed by him/and punishment awarded to him for such offences. A report shall also be made about his physical and mental health or any serious ailment with which the prisoner is suffering, entitling him for premature release as a special case. The note shall contain recommendation of the Superintendent i.e., whether he favors the premature release of the prisoner or not. In either case such recommendation shall be supported by adequate reasons.

iii.

The Superintendent of the jail shall make a reference to the Deputy Commissioner of Police/Superintendent of Police of the district, where the prisoner was ordinarily residing at the time of the commission of the offence for which he was convicted and sentenced or where he is likely to resettle after his release from the Jail. However, in case the place where the prisoner was ordinarily residing at the time of commission of the offence is different from the place where he committed the offence, a reference shall also be made to the Deputy Commissioner of Police/Superintendent of Police of the district in which the offence was committed in either case, he shall forward a copy of the note prepared by him to enable the Deputy Commissioner of Police/ Superintendent of Police to express his views in regard to the desirability of the premature release of the prisoner.

iv.

On receipt of the reference, the concerned Deputy Commissioner of Police/Superintendent of Police shall cause an inquiry to be made in the matter through a senior police officer of appropriate rank and based on his own assessment shall make his recommendations. While making the recommendations the Deputy Commissioner of Police/ Superintendent of Police shall not act mechanically and oppose the premature release of the prisoner on untenable and hypothetical grounds/apprehensions. In case the concerned Deputy Commissioner of Police/Superintendent of Police is not in favor of the premature release of the prisoner, he shall justify the same with cogent reasons and material. He shall return the reference to the Superintendent of the concerned Jail not later than 30 days from the receipt of the reference.

v.

The Superintendent of Jail shall also make a reference to the Chief Probation Officer and shall forward a copy of his note. On receipt of the reference, the Chief Probation Officer shall either hold or cause to be held an inquiry through a Probation Officer in regard to the desirability of premature release of the prisoner having regard to his family and social background, his acceptability by his family members and the society, prospects of the prisoner for rehabilitation and leading a meaningful life as a good citizen. He will not act mechanically and recommend each and every case for premature release. In either case he should justify his recommendation by reasoned material. The Chief Probation Officer shall furnish his report with recommendations to the Superintendent of the Jail not later than 30 days from the receipt of the reference.

vi.

On receipt of the report/ recommendations of the Deputy Commissioner of Police/Superintendent of Police and Chief Probation Officer, the Superintendent of Jail shall put up the case to the Inspector General of Prisons at least one month in advance of the proposed meeting of the Sentence Review Board. The Inspector General of Prisons shall examine the case, bearing in mind the report/recommendations of the Superintendent of Jail. Deputy Commissioner of Police/Superintendent of Police and Chief Probation Officer shall make his own recommendations with regard to the premature release of the prisoner or otherwise keeping in view the general or special guidelines laid down by the Government for the Sentence Review Board. Regard shall also be had to various norms laid down and guidelines given by the Apex Court and various High Courts in the matter of premature release of prisoners.

1257. The Board shall follow the following Procedure and Guidelines while reviewing the cases and making its recommendations to the competent authority.

a)

The Inspector General of Prisons with the prior approval of chairman shall convene a meeting of the Sentence Review Board on a date and time advance notice of which shall be given to the Chairman and Members of the Board at least ten days before the scheduled meeting and it shall accompany the complete agenda papers i.e. the note of the Superintendent of Jail recommendations of the Deputy Commissioner of Police/ Superintendent of Police, Chief Probation Officer and Inspector General of Prisons along with the copies of documents, if any.

b)

A meeting shall ordinarily be chaired by the Chairman and if for some reasons he is unable to be present in the meeting, it shall be chaired by the Principal Secretary (Home). The Member Secretary (Inspector General of Prisons) shall present the case of each prisoner under consideration before the Sentence Review Board. The board shall consider the case and take a view. As far as practicable, the Sentence Review Board shall endeavor to make unanimous recommendation. However, in case of a dissent, the majority view shall prevail and will be deemed to be decision of the Board. If equal numbers of members are of opposing views, the decision of the chairman will be final. However, the views of the opposing members should be recorded.

c)

While considering the case of premature release of a particular prisoner, the Board shall keep in view the general principles of amnesty/remission of the sentence as laid down by the Government or by Courts as also the earlier precedents in the matter. The paramount consideration before the Sentence Review Board being the welfare of the prisoner and the society at large. The Board shall not ordinarily decline a premature release of a prisoner merely on the ground that the police have not recommended his release. The Board shall take into account the circumstances in which the offence was committed by the prisoner and whether he has the propensity and is likely to commit similar or other offence again.

d)

Rejection of the case of a prisoner for premature release on one or more occasions by the Sentence Review Board will not be a bar for reconsideration of his case. However, the reconsideration of the case of a convict already rejected shall be after the expiry of a period of Six months from the date of last consideration of his case. It is prescribed that decision of the case of a convict of premature release should be through speaking order in writing.

e)

The recommendation of the Sentence Review Board shall be placed before the competent authority without delay for consideration. The competent authority may either accept the recommendations of the Sentence Review Board or reject the same on grounds to be stated or may ask the SRB to reconsider a particular case. The decision of the competent authority shall be communicated to the concerned prisoner and in case the competent authority has ordered grant of remission and ordered his premature release, the prisoner shall be released forthwith with or without conditions.

“87.

It was further observed in Prem Raj [State (NCT of Delhi) v. Prem Raj, (2003) 7 SCC 121 : 2003 SCC (Cri) 1586] that a pardon is an act of grace, proceeding from the power entrusted with the execution of the law, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It affects both the punishment prescribed for the offence and the guilt of the offender. But pardon has to be distinguished from “amnesty” which is defined as a “general pardon of political prisoners; an act of oblivion”. An amnesty would result in the release of the convict but does not affect disqualification incurred, if any. “Reprieve” means a stay of execution of a sentence, a postponement of a capital sentence. Respite means awarding a lesser sentence instead of the penalty prescribed in view of the fact that the accused has had no previous conviction. It is something like a release on probation for good conduct under Section 360 CrPC. On the other hand, remission is reduction of a sentence without changing its character. In the case of a remission, the guilt of the offender is not affected, nor is the sentence of the court, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence, but is relieved from serving out a part of it. Commutation is change of a sentence to a lighter sentence of a different kind. Section 432 empowers the appropriate Government to suspend or remit sentences.

“88.

Further, a remission of sentence does not mean acquittal and an aggrieved party has every right to vindicate himself or herself. In this context, reliance was placed on Sarat Chandra Rabha v. Khagendranath Nath [Sarat Chandra Rabha v. Khagendranath Nath, 1960 SCC OnLine SC 130 : AIR 1961 SC 334] (“Sarat Chandra Rabha”), wherein a Constitution Bench of this Court while distinguishing between a pardon and a remission observed that an order of remission does not wipe out the offence; it also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus, does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court even though the order of conviction and sentence passed by the court still stands as it is. The power to grant remission is an executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court. According to Weater's Constitutional Law, to cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua the judgment.”

“37.

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 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.”

“27.

It is true that no convict has a fundamental right of remission or shortening of sentences. It is also true that the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors. The power of the State to issue general instructions, so that no discrimination is made, is also permissible in law.

* * * * *

“38.

A right to be considered for remission, keeping in view the constitutional safeguards of a convict 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. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy decision itself must be held to have a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally. (State of Mysore v. H. Srinivasmurthy [(1976) 1 SCC 817 : 1976 SCC (L&S) 126] )”

“6.

From the counter filed by the State, we find that the Government has also framed guidelines for this purpose. To consider the prayer for premature release of the “life convicts”, a police report was called for on the following points:

(i)

Whether the offence is an individual act of crime without affecting the society at large.

(ii)

Whether there is any chance of future recurrence of committing crime.

(iii)

Whether the convict has lost his potentiality in committing crime.

(iv)

Whether there is any fruitful purpose of confining this convict any more.

(v)

Socio-economic condition of the convict’s family.

“7.

Though the police report did not cover all the above points, the prayer of “life convicts” for premature release was rejected mainly on the ground of objections by police. The police had only reported about the chances of the petitioners committing crime again. It becomes apparent from the record that the Government did not consider the prayer for premature release as per the Rules. The Government did not pay sufficient attention to the conduct record of the petitioners while in jail nor did it consider whether they had lost their potentiality in committing crime. The relevant aspect, namely, that there is no fruitful purpose in confining them any more was also not considered nor were the socio-economic conditions of the convict’s family taken into account. Thus the orders of the Government suffer from infirmities and are liable to be quashed.

“8.

In the result, we set aside all the orders of the State Government and direct the authorities to reconsider the cases for premature release of all “life convicts” who have approached us by filing the present writ petitions as per relevant rules/guidelines within a period of one month from the receipt of this order.”

“18.

A perusal of the government orders displays that the statutory mandate on premature release has been completely overlooked. The three-factor evaluation of : (i) antecedents, (ii) conduct during incarceration, and (iii) likelihood to abstain from crime, under Section 2 of the U.P. Prisoners Release on Probation Act, 1938, have been given a complete go-by. These refusals are not based on facts or evidence, and are vague, cursory, and merely unsubstantiated opinions of the State authorities.

“19.

It would be [sic] gainsaid that length of the sentence or the gravity of the original crime cannot be the sole basis for refusing premature release. Any assessment regarding predilection to commit crime upon release must be based on antecedents as well as conduct of the prisoner while in jail, and not merely on his age or apprehensions of the victims and witnesses. [Zahid Hussein v. State of W.B., (2001) 3 SCC 750 : 2001 SCC (Cri) 631] As per the State’s own affidavit, the conduct of both the petitioners has been more than satisfactory. They have no material criminal antecedents, and have served almost 16 years in jail (22 years including remission). Although being about 54 and 43 years old, they still have substantial years of life remaining, but that does not prove that they retain a propensity for committing offences. The respondent State’s repeated and circuitous reliance on age does nothing but defeat the purpose of remission and probation, despite the petitioners having met all statutory requirements for premature release.

“20.

Indeed, the petitioners’ case is squarely covered by the ratio laid down by this Court in Shor v. State of U.P. [Shor v. State of U.P., (2021) 14 SCC 820], para 5, which has later been followed in Munna v. State of U.P. [Munna v. State of U.P., (2021) 14 SCC 589], the relevant extract of which is reproduced as under : (Shor case [Shor v. State of U.P., (2021) 14 SCC 820] , SCC pp. 821-22, para 5)

“5.

A reading of the order dated 22-1-2018 shows that the Joint Secretary, Government of U.P. has failed to apply his mind to the conditions of Section 2 of the U.P. Act. Merely repeating the fact that the crime is heinous and that release of such a person would send a negative message against the justice system in the society are factors de hors Section 2. [of the United Provinces Prisoners’ Release on Probation Act, 1938] Conduct in prison has not been referred to at all and the Senior Superintendent of Police and the District Magistrate confirming that the prisoner is not “incapacitated” from committing the crime is not tantamount to stating that he is likely to abstain from crime and lead a peaceable life if released from prison. Also having regard to the long incarceration of 29 years (approx.) without remission, we do not wish to drive the petitioner to a further proceeding challenging the order dated 22-1-2018 when we find that the order has been passed mechanically and without application of mind to Section 2 of the U.P. Act.””

18.1. Sushil Sharma vs. State6

“25.

The guidelines, inter alia, required the SRB to strictly observe the general principles of amnesty and remission of sentence as laid down by the Government or by the Courts; the cardinal consideration being the welfare of the prisoner and society at large.

“26.

The SRB was further directed, not to decline a premature release of a prisoner, merely on the ground that the police have not recommended his release; and were required to take into account not only the circumstances in which the offence was committed by the prisoner, but also whether he had the propensity and could be stated to be likely to commit a similar or other offence again.

“27.

In view of the foregoing requirements prescribed by the guidelines, the SRB cannot be heard to state that, they are not bound by them particularly, in view of the circumstance that they owe their existence to the guidelines. The SRB, is required to exercise its recommendatory function strictly in accordance with the binding principles enunciated in the guidelines, from where their discretion emanates. The policy formulated by the Competent Authority is binding on the SRB and has to be scrupulously observed, adhered to and followed.

“28.

In this behalf, it would be trite to observe that, an authority must be strictly held to the standards, by which it professes its conduct to be judged.

“29.

At this juncture, we must record our appreciation for Mr. Rahul Mehra, learned Standing Counsel (Criminal) for his submission that the SRB being a recommendatory body owing its existence to the guidelines, is bound by them absolutely, although, the Lieutenant Governor, who is the competent authority is, in turn, not bound by the recommendations of the SRB. The issue, therefore, rests there.

“30.

The SRB is consequently bound by law, to strictly adhere to the guidelines, in the discharge of their recommendatory function, to review the sentences awarded to a prisoner and refer them for release, if so warranted by the guidelines, to the Competent Authority. The discretion to formulate policy and to frame guidelines for premature release of prisoners, undoubtedly vests in the State, but once made, the same have to be followed without exception.

* * * * *

“40.

Although, there can be no quarrel with the proposition that the SRB has been vested with discretion under the extant guidelines, the same has to be exercised in a just and reasonable manner, after due and proper consideration of all the relevant material.

* * * * *

“48.

The categories of convicted prisoners, who stand convicted of a capital offence and whose death sentence has been commuted to life imprisonment; as in Sushil Kumar Sharma’s case, are entitled to be considered for premature release after undergoing imprisonment for 20 years including remission.

“49.

The said condition is further qualified by a cap in the period of incarceration of such lifer, inclusive of remissions, to a total period of 25 years.

“50.

In view of the foregoing, in order to justifiably continue the incarceration of Sushil Kumar Sharma, beyond the maximum period stipulated in the guidelines, it is incumbent upon the State to provide cogent and compelling reasons for his further detention.

“51.

In the present case, these reasons are conspicuous by their absence. Even, accepting the submission made on behalf of the State, to the effect that, the cap of 25 years in the guidelines do not warrant automatic release of a person sentenced to imprisonment for life, we are of the view that, Sushil Kumar Sharma’s further incarceration by the State beyond the 29 years’ incarceration with remissions, already undergone by him, does not admit of legal justification and lawful sanction, in the facts and circumstances elaborated hereinbefore.”

18.2. Vijay Kumar Shukla vs. State NCT of Delhi & Anr.7

“28.

Since August 2020, almost every 6 months, his case has been rejected by the SRB noting the strong opposition by the Police Department, ‘in the facts and circumstances of the case, ‘gravity and perversity of the crime’.

“29.

Each time the SRB rejects the plea, in a pithily drafted, cursorily articulated proforma paragraph, not only is each of the rejections almost a copy-paste of an earlier rejection, but it lacks any embellishment or modicum of assessment or reasoning beyond the proforma factors on which SRB has right to reject. What is, therefore, before this Court are a set of previous rejections and the impugned rejection of 2023 parroting the same reasons.

“30.

The Court, therefore, faces two options : either to be persuaded by these repeated rejections and conclude that there must be a rationale underlying the SRB’s consistent stance, or to evaluate whether the SRB has genuinely applied logic, rationality, reasonableness, and proper application of mind in accordance with the rules and guidelines it is bound to follow. The second option is prompted by the petitioner’s 26-year-long journey being incarcerated, as noted above, which reveals an apparent and significant discrepancy between that journey and the reasons cited by the SRB for its rejections. There seems to be an apparent and obvious mismatch between the elements of that journey and the reasons for the rejection by the SRB.

* * * * *

“35.

From a perusal of the impugned Minutes of SRB (extracted in paragraph 13 above), none of these aspects can be gleaned or ascertained. Ex facie reading of the impugned order bears out that only three aspects have been stated in the so-called speaking order. i.e. the original crime, gravity and perversity of it, strong opposition by police. This is further embellished by an open-ended ‘etcetera’, which in its own right is dispositive of non-application of mind. Rejecting premature release of a 26-year-old convict with an ‘etcetera’ is an unfortunate short-cut, perfectly opaque and a disservice to the rules and guidelines which the SRB is mandated to follow.

* * * * *

“40.

Clearly, pure and simple logic has got lost in the bureaucratic miasma. The very qualification for being in semi-open prison and open prison, as per Rules, 1323 and 1325, involves an assessment of factors like physical and mental health, behaviour and conduct, progress in work, vocational training, education, group adjustability, character and discipline, fitness for being entrusted to responsibility, performance of labour with devotion and diligence, and various other connected factors. Having passed muster on all these stringent factors and establishing his grades consistently, it is a mystery as to why these did not appeal to the SRB or any of the authorities giving their input reports, i.e. Police, Probation Officer, the Inspector General of Police and the prison authorities.

* * * * *

“45.

As rightly pointed out, the petitioner’s counsel’s “propensity for crime” cannot be a random subjective assessment but has to be based on objective factors. The objective factors are quite well ensconced in the eligibility conditions, of a convict being in a semi-open prison and even more stringent requirements to qualify for an open prison. If those factors are met in this case, the committing to a semi-open/open prison is done, and the ‘report card’ of the convict continues to be good, in the opinion of the Court would be supremely critical factors that ought to imbue any assessment for premature release.

* * * * *

“47.

The petitioner’s counsel relies on the guidelines by the National Human Rights Commission of September 2003 prescribing mandatory release after 25 years of incarceration, including remission, being a policy more beneficial to the accused is also taken into account.”

18.3. Santosh Kumar Singh vs. State (Govt. of the NCT) of Delhi8

“70.

While this articulation of factors in abstract terms might reflect a comprehensive framework, the test lies in the actual application of these parameters to the facts of each case. A closer scrutiny of the specific reasons recorded in the Impugned Minutes of the SRB, which have already been extracted in the preceding paragraphs, reveals a striking departure from the procedural and substantive expectations laid down by judicial precedents. Notwithstanding the elaborate preface of the Impugned Minutes, the rejection in each of the present matters appears to hinge on a recurring conclusion: that the convict has “not lost the propensity to commit crime”. This finding, however, is left unsubstantiated by any cogent reasoning or case-specific analysis.

“71.

Critically, there is no material on record to show that the SRB undertook any contemporaneous or independent psychological or behavioural assessment to substantiate this sweeping conclusion. Instead, the premise of sustained criminal propensity appears to be inferred predominantly from the nature and gravity of the original offence and the opposition by the police. Such an approach is constitutionally untenable and jurisprudentially flawed. In Satish @ Sabbe v. State of UP, the Supreme Court has categorically held that the “gravity of the original crime cannot be the sole basis for refusing premature release.” The Court further clarified that the assessment of a convict’s potential for recidivism must rest on antecedents and conduct during incarceration, not on speculative apprehensions or police oppositions.

* * * * *

“75.

It must also be noted that in at least two of the rejection orders under consideration, the SRB has made the striking observation that “the conduct of the convict in jail is not necessarily a barometer of what he may do if outside the prison”. This broad proposition is not only inconsistent with the Board’s own declared mandate in the preface, but also contradicts both the governing statutory framework and settled judicial doctrine. Rule 1244 of the DPR expressly identifies post-conviction conduct as the principal indicator of reformation and eligibility for premature release. Likewise, multiple judicial pronouncements, such as Zahid Hussein and Satish @ Sabbe, have held that in the absence of contemporary evidence to the contrary, sustained good conduct during incarceration must be given substantial weight. Thus, the Board’s holding that the conduct of the convict in jail is not an indicator of what they may do outside, not only effectively nullifies the probative value of the convict’s post-conviction conduct and reformative efforts, but also reflects a patently erroneous and arbitrary approach that undermines the very purpose of the remission policies.

* * * * *

“78.

While the Impugned Minutes of Meeting in each of the present cases recite that the SRB considered the reports received from the Police and the Social Welfare Departments, as well as the facts and circumstances of the respective cases, the record reveals a mere perfunctory reference to these materials. In the prefatory remarks of the impugned decisions, it is stated that the Director General (Prisons) placed before the Board a compiled agenda containing case-specific materials, including police reports, probation officer assessments, medical records, offence details, and institutional conduct reports. However, a bare assertion of having “considered” these documents cannot substitute for the judicially mandated duty of meaningful and individualised evaluation.”

“112.

Another glaring feature of the SRB’s reasoning is the systematic exclusion of every positive Institutional Report, from its final conclusions.

* * * * *

“115.

The Rejection Orders in the Petitioners (sic) are “pithily drafted, cursorily articulated proforma paragraphs” taking a myopic view of only the gravity of offence, overlooking all other relevant considerations. Also, the reasoning process devolved into a “copy-paste” exercise, with no other reason for rejection, much like the rejections in Vijay Kumar Shukla (supra). It clearly reflects non-application of mind in ignoring the relevant parameters provided in Policy, 2004 and dogmatic adherence to gravity of offence, which cannot be given this exalted position in the Remission Orders, especially when it is not stated to be a relevant factor.”

“33.

In case, as pointed out above, a petition is filed without any decision(s) of the State Level Committee in terms of Para 5(I) of the G.O. in question, the Court should direct the committee/authority concerned to take decision within a reasonable period. Obviously, too much time cannot be given because the liberty of a person is at stake. This order would be more in the nature of a writ of mandamus directing the State to perform its duty under the Scheme. The authorities must pass a reasoned order in case they refuse to grant benefit under the Scheme. Once a reasoned order is passed then obviously the detenu has a right to challenge that order but that again would not be a writ of habeas corpus but would be more in the nature of a writ of certiorari. In such cases, where reasoned orders have been passed the High Court may call for the record of the case, examine the same and after examining the same in the context of the parameters of the Scheme decide whether the order rejecting the prayer for premature release is justified or not. If it comes to the conclusion that the order is not a proper order then obviously it can direct the release of the prisoner by giving him the benefit of the Scheme. There may be cases where the State may not pass any order on the representation of the petitioner for releasing him in terms of GO (Ms) No. 64 dated 1-2-2018 despite the orders of the Court. If no orders have been passed and there is no explanation for the delay then the Court would be justified in again calling for the record of the case and examining the same in terms of the policy and then passing the orders.”

“17.

It is no doubt trite law that no convict can claim remission as a matter of right. [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] However, in the present case, the circumstances are different. What had been sought and directed by this Court through repeated orders was not premature release itself, but due application of mind and a reasoned decision by executive authorities in terms of existing provisions regarding premature release. Clearly, once a law has been made by the appropriate legislature, then it is not open for the executive authorities to surreptitiously subvert its mandate. Where the authorities are found to have failed to discharge their statutory obligations despite judicial directions, it would then not be inappropriate for a constitutional court while exercising its powers of judicial review to assume such task onto itself and direct compliance through a writ of mandamus.”

“110.

While stoutly resisting the said submission made on behalf of the Union of India, Mr Dwivedi, learned Senior Counsel, who appeared for the State of Tamil Nadu contended that in the case on hand, this Court while commuting the death sentence of some of the convicts did not exercise the Executive Power of the State, and that it only exercised its judicial power in the context of breach of Article 21 of the Constitution. It was further contended that if the stand of the Union of India is accepted then in every case where this Court thought it fit to commute sentence for breach of Article 21 of the Constitution, that would foreclose even the right of a convict to seek for further commutation or remission before the appropriate Government irrespective of any precarious situation of the convict i.e. even if the physical condition of the convict may be such that he may be vegetable by virtue of his old age or terminal illness. It was also pointed out that in V. Sriharan v. Union of India [V. Sriharan v. Union of India, (2014) 4 SCC 242 : (2014) 2 SCC (Cri) 282], order dated 18-2-2014, this Court while commuting the sentence of death into one of life also specifically observed that such commutation was independent of the power of remission under the Constitution, as well as, the statute. In this context, when we refer to the power of commutation/remission as provided under the Criminal Procedure Code, namely, Sections 432, 433, 433-A, 434 and 435, it is quite apparent that the exercise of power under Article 32 of the Constitution by this Court is independent of the Executive Power of the State under the statute. As rightly pointed out by Mr Dwivedi, learned Senior Counsel in his submissions made earlier, such exercise of power was in the context of breach of Article 21 of the Constitution. In the present case, it was so exercised to commute the sentence of death into one of life imprisonment. It may also arise while considering wrongful exercise or perverted exercise of power of remission by the statutory or constitutional authority. Certainly there would have been no scope for this Court to consider a case of claim for remission to be ordered under Article 32 of the Constitution. In other words, it has been consistently held by this Court that when it comes to the question of reviewing an order of remission passed which is patently illegal or fraught with stark illegality on constitutional violation or rejection of a claim for remission, without any justification or colourful exercise of power, in either case by the executive authority of the State, there may be scope for reviewing such orders passed by adducing adequate reasons. Barring such exceptional circumstances, this Court has noted in numerous occasions, the power of remission always vests with the State executive and this Court at best can only give a direction to consider any claim for remission and cannot grant any remission and provide for premature release. It was time and again reiterated that the power of commutation exclusively rests with the appropriate Government.

* * * * *

“114.

Therefore, it must be held that there is every scope and ambit for the appropriate Government to consider and grant remission under Sections 432 and 433 of the Criminal Procedure Code even if such consideration was earlier made and exercised under Article 72 by the President and under Article 161 by the Governor. As far as the implication of Article 32 of the Constitution by this Court is concerned, we have already held that the power under Sections 432 and 433 is to be exercised by the appropriate Government statutorily, it is not for this Court to exercise the said power and it is always left to be decided by the appropriate Government, even if someone approaches this Court under Article 32 of the Constitution. We answer the said question on the above terms.”

“65.

The SRB performs a vital function of deciding whether a convict serving life sentence is entitled to be released prematurely. The decision so made by the SRB has a profound impact on the future of individuals serving life sentences. Such a decision has a direct bearing on the fundamental right to life and personal liberty of a convict. This imposes an obligation upon the SRB to act fairly, reasonably, and in strict accordance with both the applicable policy and transparent reasoning. An executive decision that affects liberty of a person cannot be insulated from judicial scrutiny merely by invoking its policy character.

“66.

The convicts do not have an enforceable right to be released prematurely. They only have a right to be considered in accordance with the governing policy and legal framework; however, this consideration cannot be reduced merely to a mechanical refusal. Unless every application is ‘meaningfully considered’ and decided through speaking orders, the mechanical decision of the SRB, without referring to relevant factors of determination, would be violative of the principles of natural justice. As held in the case of Vijay Kumar Shukla, administrative convenience cannot be attained at the cost of the right of the prisoners to have their cases meaningfully reviewed as per law. Therefore, the SRB must give cogent reasons in support of their decisions. Although, the law does not require elaborate reasoning but some degree of application of mind must be evident from the order. At the very least, the decision must reflect how inputs, reports and relevant factors were considered by the Board.

“67.

The role of the judiciary is not to undertake a de novo evaluation of every SRB decision, but to ensure that the exercise of discretion is neither arbitrary nor discriminatory, and is premised on a discernible material foundation. As a constitutional court entrusted with safeguarding fundamental rights, this Court is obligated to intervene where such decisions reflect mechanical reasoning, misapplication of policy, or a lack of objective and case-specific analysis.”

“169.

The jurisprudence emerging from these judgments recognizes that when a prisoner has served the maximum period of incarceration contemplated under state policy, such as 25 or 29 years, and continues to face repeated, arbitrary, or unreasoned rejections by the SRB, the High Court may directly intervene under Article 226 to prevent a “failure of justice.” In such circumstances, where the SRB’s decisions lack legal justification and the prisoner has demonstrated sustained good conduct and reform over decades, including multiple successful parole periods, remanding the matter back to the SRB would be futile, as held in Bilkis Yakub Rasool (supra). The incarceration, having become disproportionate and devoid of penological purpose, triggers the Court’s duty to protect the prisoner’s fundamental right to liberty under Article 21, warranting immediate release.

* * * * *

“172.

The “futility” of the alternative remedy, as emphasized in the case of Whirlpool, (supra) is writ large on the face of the decisions. In its 12 rejections based on the same static ground i.e. the gravity of the original offense committed in 2003, the SRB has demonstrated a bureaucratic haze that is unlikely to be cured by a 13^th Application. As this Court has repeatedly emphasized, the gravity of an offense is a static, historical fact - it will never change, no matter how many decades pass. To allow the heinousness of a past act to act as a permanent bar to remission is to transform a life sentence into a retributive death by incarceration, rendering the State’s reformative machinery entirely redundant.”

“29.

The next question is whether a remand is the appropriate recourse. In the facts and circumstances noted above, it is not. One remand has already been granted. The reconsideration has returned with substantially the same infirmity. A further remand would therefore serve little purpose other than prolonging incarceration, while the record continues to show no cogent material that answers the policy’s rehabilitative criteria in the negative. When a statutory framework and a binding policy prescribe the manner in which the power is to be exercised, the executive cannot reduce the exercise to a formal ritual by repeating broad generalities and leaving the mandatory considerations untouched. The impugned reconsideration does exactly that. It reproduces the earlier defect, with the label of the “heinous offence” and a speculative apprehension of future risk, without an evidence-linked assessment of antecedents and prison conduct to deny the request. Satish @ Sabbe makes the position clear. Where authorities fail to discharge the obligation of reasoned consideration despite judicial directions, a Constitutional Court may step in and issue a writ of mandamus to secure compliance, rather than consigning the prisoner to an endless cycle of reconsiderations. Further, the gravity of the original crime, however serious, cannot become the sole ground to refuse premature release once the policy threshold is crossed. Any assessment of the likelihood of reoffending must be grounded in material, including antecedents and conduct during incarceration, and not in vague fears or unreasoned assertions. Zahid Hussein v. State of W.B., reiterates the same principle, cautioning that conclusions about future criminality cannot rest on conjecture.”

25.3. Rajab Ali vs. State (NCT of Delhi) & Anr.14

“91.

In the present case, the Orders of the SRB are almost copy-paste and evidently, these Orders have been passed more as a formality, rather than following the principles of natural justice. They cannot qualify as reasoned orders, demonstrating transparency and fairness in a decision-making process. It is not the brevity of an Order, but it being devoid of reason, which is fatal. The complete opacity in reflected in the Orders, which are cryptic and the principles relevant for considering the remission of an inmate, are visible in the SRB Order. Unfortunately, there is no clarity or logic or reason, in the consistent rejection of the case of the Petitioner in the SRB Meetings.”

* * * * *

“94.

The Petitioner has undergone 22 years 05 months 10 days of actual incarceration and over 28 years 08 months 28 days including remission. His continued detention despite fulfilling all the criteria and reflecting his complete reformation and loss of propensity to commit crime and fulfilling all the criteria laid down in the Remission Policy, 2004 as well as the Delhi Prison Rules, 2018 and denying him consistently the benefit of remission, directly impacts his Right to Life and Personal Liberty under Article 21. Where the State action threatens the fundamental guarantee of liberty, the Courts are well empowered in exercise of their power of judicial review to intervene.”

“Rule 4

1.

The purposes of a sentence of imprisonment or similar measures deprivative of a person’s liberty are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.”

“3.

Counselling and psychological therapy have a significant role in addressing the issue of prisoner reformation. It may, therefore, be necessary for States to evolve and implement suitable behavioural therapy and counseling programs for inmates by involving Psychologists and other experts to bring in the desired behavioural changes.

“4.

At the same time, concerns have been expressed regarding recidivism, as in some cases, prison inmates, on temporary release from prison either on parole/furlough or on premature release, before completion of their sentence, have re-offended or indulged in criminal activities. This underlines the need to carefully regulate the grant of parole, furlough, remission and premature release to prisoners. It is, therefore, important for State authorities to review their guidelines to ensure that the facility and concession given to inmates, by way of parole, furlough and premature release etc., with the intention of providing them relief and rehabilitation, is not abused and misused by them and their advantage does not turn into disadvantage and nuisance for the society at large. The following provisions may, therefore, be included in the guidelines:

i)

Grant of parole and furlough to those offenders, whose release may have adverse impact on the security of the State or safety of individuals, may be strictly restricted.

ii) The parole rules of States, including the criteria, duration and frequency may be reviewed after making an assessment based on their experience about the benefits and detriments of such parole.

iii) Parole and furlough may not be granted as a matter of routine and may be decided by a Committee of officers and behavioural experts, who may meet as per requirement, keeping in view all relevant factors, especially for inmates sentenced for sexual offences, serious crimes such as murder, child abduction, violence etc.

iv) It may be useful to invariably include an expert Psychologist/Criminologist/Correctional Administration Expert as a member of the Sentence Review Board and in the Committee which decides grant of parole and furlough to inmates and obtain their opinion before such temporary release.

“5.

Attention is also invited to some extracts of the United Nations Standard Minimum Rules for the Treatment of Prisoners, known as The Nelson Mandela Rules’ (enclosed as Annexure), which are reiterated to all States/UTs for their general guidance and implementation.”

“[80] In his answering affidavit, all the Minister said was in effect that it was not his position that the applicant would never be released on parole. He never explained how he could release the applicant on parole in the future when the reasons that prevented him from releasing the applicant on parole in 2020 would still be present and would not have changed. What the Minister says in effect is that in 2020 he was prevented by the nature and seriousness of the crime and the trial court’s and Supreme Court of Appeal’s sentencing remarks from releasing the applicant on parole but some time in the future he could release him on parole despite the fact that the nature of the crime, its seriousness and the court’s sentencing remarks would not have changed. Earlier I pointed out that the Department’s policy requires that, as far as possible, a prisoner should be placed on parole as soon as possible after he or she has reached the date when he or she can be considered for parole. In this regard we must remember that the applicant’s date when he became eligible to be considered for placement on parole was in 2005. That is seventeen years ago. That is close to 20 years ago. Furthermore, I also highlighted earlier that the Department’s policy makes it clear that a prisoner must be evaluated fairly and justly for placement on parole.

* * * * *

“[84] Ordinarily, this Court would remit the matter to the Minister and direct that he considers the applicant’s application for parole afresh and make a decision on whether or not the applicant should be placed on parole. That route enables the court to allow the functionary in whom the power to make a certain decision vests to make the decision whether or not the applicant should be released on parole. However, it is not our law that a court will not under any circumstances either make the decision itself that was supposed to have been made by the functionary concerned or that it can never order such a functionary to make a particular decision. The courts in this country appreciated this even before the advent of democracy.

* * * * *

“[86] After the advent of democracy, this continued to be the position. It is important to emphasise that courts only substitute their decisions for those of government functionaries in exceptional cases. It is not something the courts do lightly nor should they. Section 8 of PAJA deals with remedies in judicial review proceedings…

* * * * *

“[90] A period of more than 15 years has lapsed since the applicant became eligible for consideration to be placed on parole. It was in 2005 that the applicant became eligible to be considered for placement on parole. The Minister accepts that the applicant has shown remorse for the crime he committed. The evidence reveals that during his imprisonment all these years since 1993 the applicant has had no negative disciplinary record in prison. The Minister accepts that the applicant’s risk of re-offending if he were to be placed on parole is low. The applicant has apologised to Mrs Hani and her family more than once. The applicant cannot do anything about the nature of the crime he committed, its seriousness nor can he do anything about the sentencing remarks that the trial court had made about him and the crime of which he was convicted. With regard to the factors the Minister took into account against the applicant the fact that, if the applicant were placed on parole, he would serve only a period of two years of his life sentence, should not have been taken into account. This is because that is a benefit that the law has given to the prisoners falling in the same category as the applicant and he is entitled to benefit from that law. In this regard it must be remembered that section 9(1) of the Constitution declares that “[e]veryone is equal before the law and has the right to equal protection and benefit of the law.”:

* * * * *

“[92] The other factor that should be taken into account in deciding whether to remit the matter to the Minister or to order the Minister to place the applicant on parole is the history of this matter. That history reveals that not only has the applicant served 28 years of imprisonment of his life imprisonment sentence but he has also complied with all that the various Ministers of Correctional Services and the Parole Board have required him to do in order to improve his prospects of being granted parole.

* * * * *

“[96] In considering whether or not the applicant should be released on parole, I have been mindful of the fact that, in assassinating Mr Hani, the applicant sought to derail the attainment of democracy in this country and nearly plunged South Africa into a civil war. However, I have also borne in mind that, when the fathers and mothers of our constitutional democracy drafted our Constitution and included in it the Bill of Rights, they did not draft a Bill of Rights that would confer fundamental rights only on those who fought for democracy and not on those who had supported apartheid or who were opposed to the introduction of democracy in this country. They drafted a Bill of Rights that conferred fundamental rights on everyone including those who had supported apartheid with all their hearts. Indeed, they drafted a Bill of Rights which conferred fundamental rights even upon visitors to our country so that, upon entry into our country, they begin to enjoy the benefits and protections of our Bill of Rights. … …”

“108.

First, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. No issue arises under Article 3 [provision on prohibition of torture] if a life sentence is de jure and de facto reducible (see Kafkaris, cited above, § 98).

In this respect, the Court would emphasise that no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender’s continued detention where necessary for the protection of the public (see, mutatis mutandis, T. v. the United Kingdom, § 97, and V. v. the United Kingdom, § 98, both cited above). Indeed, preventing a criminal from re-offending is one of the “essential functions” of a prison sentence (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002-VIII; Maiorano and Others v. Italy, no. 28634/06, § 108, 15 December 2009; and, mutatis mutandis, Choreftakis and Choreftaki v. Greece, no. 46846/08, § 45, 17 January 2012). This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the State’s positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous (see, for instance, Maiorano and Others, cited above).

* * * * *

“110.

There are a number of reasons why, for a life sentence to remain compatible with Article 3, there must be both a prospect of release and a possibility of review.

“111.

It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated.

“112.

Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment … …

“113.

Furthermore, as the German Federal Constitutional Court recognised in the Life Imprisonment case (see paragraph 69 above), it would be incompatible with the provision on human dignity in the Basic Law for the State forcefully to deprive a person of his freedom without at least providing him with the chance to someday regain that freedom. It was that conclusion which led the Constitutional Court to find that the prison authorities had the duty to strive towards a life sentenced prisoner’s rehabilitation and that rehabilitation was constitutionally required in any community that established human dignity as its centrepiece. Indeed, the Constitutional Court went on to make clear in the subsequent War Criminal case that this applied to all life prisoners, whatever the nature of their crimes, and that release only for those who were infirm or close to death was not sufficient ... …

Similar considerations must apply under the Convention system, the very essence of which, as the Court has often stated, is respect for human dignity (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002-III; and V.C. v. Slovakia, no. 18968/07, § 105, ECHR 2011 (extracts)).

“114.

Indeed, there is also now clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.

“115.

The Court has already had occasion to note that, while punishment remains one of the aims of imprisonment, the emphasis in European penal policy is now on the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence (see, for instance, Dickson v. the United Kingdom [GC], no. 44362/04, § 75, ECHR 2007-V; and Boulois v. Luxembourg [GC], no. 37575/04, § 83, ECHR 2012, with further references therein). In the Council of Europe’s legal instruments, this is most clearly expressed in Rule 6 of the European Prison Rules, which provides that all detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty, and Rule 102.1, which provides that the prison regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life (see paragraph 77 above).

“116.

The relevant Council of Europe instruments set out in paragraphs 60–64 and 76 above also demonstrate, first, that commitment to rehabilitation is equally applicable to life sentence prisoners; and second, that, in the event of their rehabilitation, life sentence prisoners should also enjoy the prospect of conditional release.

Rule 103 of the European Prison Rules provides that, in the implementation of the regime for sentenced prisoners, individual sentence plans should be drawn up and should include, inter alia, preparation for release. Such sentence plans are specifically extended to life sentenced prisoners by virtue of Rule 103.8 … …

Committee of Ministers Resolution 76(2) recommends that the cases of all prisoners – including life sentence prisoners – be examined as early as possible to determine whether or not conditional release could be granted. That resolution also recommends that review of life sentences should take place after eight to fourteen years of detention and be repeated at regular intervals … ...

Recommendation 2003(23) (on the management by prison administrations of life sentence and other long-term prisoners) emphasises that life sentence prisoners should benefit from constructive preparation for release, including, to this end, being able to progress through the prison system. The recommendation also expressly states that life sentence prisoners should enjoy the possibility of conditional release (see, in particular, paragraphs 2, 8 and 34 of the recommendation and paragraph 131 of the report accompanying the recommendation, all set out in paragraph 61 above).

Recommendation 2003(22) (on conditional release) also makes clear that conditional release should be available to all prisoners and that life sentence prisoners should not be deprived of the hope of release (see paragraph 4(a) of the recommendation and paragraph 131 of the explanatory memorandum, both set out paragraph 62 above).

The Committee for the Prevention of Torture has expressed similar views, most recently in its report on Switzerland … ...

* * * * *

“120.

However, the Court would emphasise that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing (see paragraphs 104 and 105 above), it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter … ...

“121.

It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention.”

IV. SUBMISSIONS ON BEHALF OF STATE

“79.

Illustratively, in the process of arriving at the number of years as the most appropriate for the case at hand, which the convict will have to undergo before which the remission powers could be invoked, some of the relevant factors that the courts bear in mind are:

(a)

the number of deceased who are victims of that crime and their age and gender;

(b)

the nature of injuries including sexual assault if any;

(c)

the motive for which the offence was committed;

(d)

whether the offence was committed when the convict was on bail in another case;

(e)

the premeditated nature of the offence;

(f)

the relationship between the offender and the victim;

(g)

the abuse of trust if any;

(h)

the criminal antecedents; and whether the convict, if released, would be a menace to the society.

Some of the positive factors have been:

(1)

age of the convict;

(2)

the probability of reformation of convict;

(3)

the convict not being a professional killer;

(4)

the socio-economic condition of the accused;

(5)

the composition of the family of the accused; and

(6)

conduct expressing remorse.” (emphasis supplied)

“81.

Although this Court broadly concurs with most of the Petitioners’ submissions, their invocation of Article 14 of the Constitution cannot be sustained. The Petitioners have urged that the refusal to grant them premature release, despite the comparable gravity of their offences and their claimed prison conduct and reformation efforts mirroring those of convicts who have been released, constitutes discriminatory treatment in breach of Article 14. At first glance, this argument might appear compelling. However, such a superficial comparison cannot satisfy the rigorous threshold of Article 14. The constitutional guarantee under Article 14 proscribes arbitrary or irrational classification but does not mandate uniformity of outcome where the decision is based on multifactorial and case-specific assessments.

“82.

The very framework of premature release is predicated not on the nature of the offence alone, grave or otherwise, but on a holistic evaluation of multiple dynamic factors. These include the convict’s conduct in prison, likelihood of reformation, risk of recidivism, psychological profile, victim or societal response, and whether the release would serve any meaningful rehabilitative purpose. Merely pointing to the release of other convicts with similar convictions does not, ipso facto, establish discrimination. Accepting parity solely on perceived similar conduct would undermine the very concept of individualized assessment and judicial discretion, transforming a nuanced qualitative evaluation into a mechanical entitlement. Such an approach would run counter to the ethos of the premature release policy, which is anchored in calibrated, case-specific consideration rather than a one-size-fits-all formula. Accordingly, this Court finds no violation of Article 14.” (emphasis supplied)

“We are in agreement with the submission of learned counsel for the petitioner in this behalf that it was not within the domain of judicial review for the learned judge to have himself exercised the power of remission. However, we would not like to exercise jurisdiction under Article 136 of the Constitution of India at this stage as the respondent stands enlarged 9 months back and no purpose would be served in sending him back to custody and for the State to once again examine the request for remission.” (emphasis supplied)

“14.

While the court can review the decision of the Government to determine whether it was arbitrary, it cannot usurp the power of the Government and grant remission itself. Where the exercise of power by the executive is found to be arbitrary, the authorities may be directed to consider the case of the convict afresh.” (emphasis supplied)

“18.

Having considered the aforesaid submissions, and the several decisions relied upon by the learned counsel on both sides, it is, firstly, clear that life sentence is not limited to either 14 years, or 20 years, or even 25 years. A life sentence means the actual life imprisonment for the entire life of the convict. The same may be curtailed by the State by premature release. However, that is the discretion of the State Government to be exercised on the advice of the SRB. The SRB itself has to arrive at its opinion on the aspect of premature release on sound principles. It should have good reasons for allowing or disallowing the application for premature release made by a convict. The Courts cannot substitute the discretion of the State/SRB with its own discretion. If the Court finds that the said discretion has not been properly exercised with due application of mind, the Court may set aside the order rejecting the application seeking grant of premature release and may remit the case back for reconsideration. However, the Court would not, on its own, undertake the exercise of considering whether or not to grant premature release to a convict.” (emphasis supplied)

“48.

Therefore, it is now well-settled that the constitutional and statutory power to grant remission is vested exclusively in the executive, and this Court must not assume the role of the authority by substituting its own view for that of the SRB or the Government. However, where the decision of the SRB is challenged on grounds of procedural unfairness, arbitrariness, or non-application of mind, the Court is not powerless. Judicial review, though limited in scope, must be exercised where the discretion by the SRB or the appropriate Government is found to be is patently illegal, vitiated by constitutional violations, or rejection of a claim for remission, without reasonable justification. * * * * *

“117.

The power to grant premature release is not a continuation of the judicial sentencing process, but a distinct, post-conviction executive function grounded in the philosophy of reformation. While sentencing is a judicial function based on the facts and legal findings of the offence committed, the question of release involves a different enquiry altogether, one that balances the convict's transformation with public interest and societal impact. This balance is best drawn not by the Court, but by the SRB, which is constituted precisely for this purpose. The SRB comprises representatives from the judiciary, prison administration, social welfare, and law enforcement - each contributing a unique institutional perspective to the overall evaluation. This diversity of viewpoints is critical because the assessment of a convict's readiness for reintegration into society cannot rest on a singular, siloed perspective. Such a determination involves complex considerations: whether the individual has undergone genuine reformation, whether they retain criminal propensity, how their release might affect public confidence in the justice system, and what rehabilitative support systems are available.

“118.

While this Court is empowered to ensure that such decisions are not arbitrary or procedurally flawed, it must resist the temptation to sit in judgment over the merits of individual release applications unless a clear and egregious miscarriage of justice is made out. The institutional design of the SRB is a deliberate one. It exists to bring coherence to a process that is neither entirely judicial nor entirely administrative, but straddles the boundaries of both. Particularly in cases involving heinous offences, where the punishment of life imprisonment has been upheld on the judicial side, the decision to grant premature release must be subjected to heightened scrutiny, not only in terms of the convict's prison conduct but also from the lens of societal acceptance, deterrence, and victim impact. Such a complex assessment lies squarely within the domain of the SRB.” (emphasis supplied)

V. PRINCIPLES FOR PREMATURE RELEASE

VI. SUBMISSIONS ON BEHALF OF PETITIONERS

IN W.P.(CRL) No.2875/2025 – RAMESH S/O JASWANT

IN W.P.(CRL) No.578/2025 – TASLEEM S/O ISLAMUDDIN

VII. DISCUSSION & CONCLUSIONS

Petitioner Ramesh:

Petitioner Tasleem: