National Alliance for People's Movements vs State of Maharashtra

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL) NO.4116 OF 2020

National Alliance for People’s .… Petitioner(s) Movements & Ors.

Versus

The State of Maharashtra & Ors. …. Respondent(s)

JUDGMENT

1. The petitioners herein were before the High Court of

Judicature at Bombay claiming to be in Public Interest (PIL­

CJ­LD­VC No.44/2020) seeking that the decision of the

High Powered Committee (‘HPC’ for short) dated 25.03.2020

Signature Not Verified to the extent of Clauses (iii), (iv) and (vii) of paragraph 8, Digitally signed by Sanjay Kumar Date: 2020.09.22 17:30:14 IST Reason: decisions/minutes of HPC meeting dated 11.05.2020

excluding certain categories of offences provided in 2

paragraph 5(i) and 5(ii) for the purpose of grant of interim

bail and corrigendum dated 18.05.2020 of the Minutes of

the Meeting of HPC dated 11.05.2020 to the extent of

clarification that the class and/or category of offences

determined by the HPC for temporary release be not read as

a direction made by it for mandatory release of prisoners

falling in that category or class and a further clarification

that the case of every prisoner be considered on case to case

basis for deciding the temporary release of such prisoners.

The petitioners had also sought for a direction to the

respondents to release the prisoners convicted for life

imprisonment without insisting that they have been

released in the past at least twice, either on furlough or

parole.

2. The High Court on making a detailed consideration

has arrived at the conclusion that the decision of the HPC

does not call for interference except to the extent of the

observations that were made in paragraph 36 of the order.

The petitioners, therefore, claiming to be aggrieved are

before this Court in this petition.

3

3. We have heard the learned counsel for the petitioners

and perused the petition papers.

4. Though a detailed consideration has been made by the

High Court whereunder separate concurring reasons are

given by the learned Judges on the Division Bench, it is

necessary to notice that the present issue has arisen only

on the limited scope for grant of interim

bail/parole/furlough due to the unforeseen circumstance of

the pandemic, namely, Novel Coronavirus (Covid­19) which

requires decongesting of prisons with the intention of social

distancing to be maintained so as to prevent the spread of

virus. It is in that circumstance, this Court while

registering a Suo Moto Writ Petition (Civil) No.1/2020 had

taken note of the pandemic and in that context also referred

to the decision taken by the Government of India to issue an

advisory regarding social distancing. In that background,

having taken note that there are 1339 prisons in this

country and approximately 4,66,084 inmates are lodged in

such prisons had adverted to the occupancy rate which is

high and, therefore, considering the prisons to be 4

overcrowded had issued certain directions to ensure

decongesting and maintain social distance.

5. At the first instance this Court through the order

dated 16.03.2020 had directed notice to be issued to all the

stakeholders in this regard so as to suggest immediate

measures which should be adopted for the medical

assistance to the prisoners in all jails and the juveniles

lodged in the Remand Homes for protection of their health

and welfare. Subsequently, through the order dated

20.03.2020 this Court inter alia issued the following

directions:

“We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (iii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

5 It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.”

6. Pursuant to the direction, a High­Powered Committee

was constituted in respect of the prisons in the State of

Maharashtra, the State in respect of which the present issue

has arisen. The HPC having deliberated has issued the

guidelines dated 25.03.2020 as formulated in its meeting.

The Home Department, Government of Maharashtra has

notified the same on 08.05.2020. As per the guidelines, the

Committee has classified the inmates of the prisons, broadly

into three categories, viz (i) undertrial prisoners/convicted

persons who are facing trial or convicted to the maximum

punishment of 7 years or less, (ii) the convicted persons

whose sentence is above 7 years and (iii) the undertrial

prisoners or convicted persons who are booked for serious

economic offences/bank scams and offences under Special

Acts such as MCOC, PMLA, MPID, NDPS, UAPA etc. 6

7. Thus, having classified the jail inmates to different

categories on such basis, consideration of the ‘nature of the

offence’ and the ‘severity of offence’ has been indicated to be

adopted as the yardstick while considering their case for

grant of interim bail in such situation. The petitioners while

assailing the said guidelines had alleged discrimination in

the categorisation and also unreasonableness in imposing

the condition of earlier release in respect of the convicted

persons for the sentence of more than 7 years. It is relevant

to notice that in fact this Court through the order dated

23.03.2020 had permitted such broad classification for the

purpose of consideration.

8. On the contentions urged and the decisions cited

before the High Court we are of the opinion that the High

Court in fact has appropriately adverted to the same and

has not committed any error in arriving at its conclusion. In

this regard we notice that the High Court has aptly referred

to the decision of this Court in the case of The State of

West Bengal vs. Anwar Ali Sarkar (AIR (39) 1952 SC 75),

Arun Kumar & Ors vs. Union of India & Ors. (2007) 1 7

SCC 732 and K.R. Lakshman & Ors. vs. Karnataka

Electricity Board (2001) 1 SCC 442 wherein the

circumstances when requirement of Article 14 of the

Constitution is to be satisfied is considered in detail. It is

articulated therein that equality before the law or the equal

protection of laws does not mean identity or abstract

symmetry of treatment and that reasonable classification is

permitted. In that background the High Court while

approving the categorisation made by HPC has gathered the

intention of the order dated 23.03.2020 passed by this

Court in its correct perspective.

9. While arriving at such conclusion, in addition to the

reasons assigned by the High Court we cannot also lose

sight of the fact that the entire right to claim such interim

bail has arisen in the unprecedented circumstance of the

pandemic and the consideration for interim bail is not in the

nature of a statutory right for bail based on other legal

consideration but is more in the nature of human right to

safeguard the health. The provision for bail as otherwise

provided in law in any case would be considered by the

competent courts if such right for bail is made out before 8

the competent court irrespective of the pandemic or not. The

present option provided is only as a solution to help

decongestion and to avoid the spread of virus. At the same

time the benefit granted in such circumstance cannot be to

the detriment of social order by releasing all categories of

prisoners irrespective of the categorisation to be made

depending on the severity of the crime etc. The genesis for

the present claim being the order passed by this Court in a

Suo Motu Writ Petition, a balance was struck. As such, as

noticed from the extracted portion of the order (supra), this

Court had directed the constitution of the HPC consisting of

a senior High Court Judge and highly placed officials so that

an appropriate categorisation be made in each State

dependant on the circumstance arising therein. Further,

the intention of this Court was not that every undertrial or

convicted prisoner is to be released irrespective of the

nature of offence or severity thereof. The consideration was

for the purpose of decongesting the prisons so that social

distancing could be maintained to avoid the spread of virus.

In that circumstance the consideration would certainly be

different in each State/Union Territory depending on the 9

occupancy in the prison, the spread of virus, the

infrastructure available and the need, if any, to release

certain number of prisoners so as to decongest.

10. The above noted intention is manifest in the

subsequent order dated 13.04.2020 passed by this Court,

which reads as hereunder;

“We are informed that the State of Bihar has not found it appropriate to release the prisoners for complete absence of any patient suffering from coronavirus within the prisons and also for the reason that the prisons are not overcrowded. Moreover, even in one case the murder of a prisoner who was “accused” of suffering from coronavirus has been reported.

We make it clear that we have not directed that States/Union Territories to compulsorily release the prisoners from their respective prisons. The purpose of our aforesaid order was to ensure the States/Union Territories to assess the situation in their prisons having regard to the outbreak of the present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released.”

11. Therefore, the very purpose of directing each of the

States/Union Territories to constitute a High­Powered

Committee is that the HPC taking note of the subsisting

position in such State will take a decision in the matter as

the HPC will have the wherewithal to secure all details and 10

take a decision. If the said aspect is kept in view, it is

noticed that by the guideline dated 25.03.2020 the

Committee in question has categorised the

undertrials/convicted persons by the nature of the crime

and the length of the punishment which will take care of the

severity in the process of consideration. In that regard,

insofar as the undertrial/convicted persons charged under

the common law, namely, the Indian Penal Code; they are

classified into two categories i.e. category­(i) as punishment

below 7 years and category­(ii) as punishment above 7 years

so that the consideration could be in that manner. The

Committee has thought it fit to separately classify the

undertrials/convicted persons who are charged under the

Special Enactments irrespective of the duration of

imprisonment notwithstanding the fact that the punishment

imposed could be less than 7 years. In that regard, what

has weighed with the HPC is that such enactments provide

for additional restrictions on grant of bail in addition to

those under the Criminal Procedure Code. The said

categorisation in our view cannot be considered as

unreasonable since at the first instance, based on the 11

categorisation made a consideration is required by the Court

for grant of interim bail if such undertrial/convicted person

is seeking bail purely on taking benefit of the notification

issued pursuant to such decision taken by the HPC. The

exclusion made has a reasonable basis and cannot be

termed arbitrary.

12. As already indicated the present methodology for grant

of the interim bail is with the intention to avoid

overcrowding in the unprecedented circumstance and the

grant of bail in the present circumstances is an additional

benefit to such persons. In that circumstance what has

been curtailed by the HPC by excluding certain categories is

only with a view to deny the benefit to certain category of jail

inmates who are charged with serious offences which has

an adverse effect on the society at large though the length of

the punishment that can be imposed may be lesser. Such

of those persons charged under the special enactments or

convicted for a period, more than 7 years in any event if

they are not otherwise disentitled to bail in a normal

circumstance could still seek for bail in accordance with law 12

and cannot treat the pandemic as fortuitous circumstance

to secure bail to which they were otherwise not entitled to

in law by claiming equal treatment. All that the HPC has

denied them is the benefit of seeking interim bail only on

the ground that they are entitled to be released on bail in

view of the Covid­19 situation and no other legal right has

been denied. Therefore, in the circumstance where the

present consideration for bail is not provided under a

statute but is made available based on the order passed by

this Court and further, when a known criteria is formulated

by the HPC, which had all materials before it, an

interference with the same in a petition of the present

nature in any event would not have arisen and the High

Court was accordingly justified in its conclusion.

13. That apart, keeping in perspective the object with

which the interim bail was ordered to be considered for the

purpose of avoiding overcrowding, the High Court has taken

note of the factual position that as on 24.07.2020, as per

details furnished, 10338 prisoners were released on interim

bail/parole and presently 26,279 prisoners are in prison. 13

Since it was contended on behalf of the petitioners that the

official capacity is only 23,217, the State Government had

indicated that temporary prisons have been set up in 36

locations and about 2597 prisoners are occupying the same

as of now and more will be shifted to avoid overcrowding in

the existing prisons, which indicates that appropriate steps

are being taken to achieve the object.

14. Having stated so it is necessary to indicate that the

cause for grievance may arise for an individual

undertrial/convicted prisoner only if such person has been

discriminated as against the prisoner in the same category

for which the benefit has been provided by the

categorisation made by the HPC. That apart the intention

being to decongest the prisons, as a first step the release of

the prisoners based on the impugned guidelines, held to be

unflawed would be made. If, despite the release of the

undertrial/convicted prisoners in the categories presently

made does not achieve the purpose and the fact that

additional prisons are set up also does not suffice and in

that context if any modification with regard to the categories 14

made by HPC is necessary; certainly it would be open for

the HPC to take note of the same and apply their mind to

modify its guidelines in that regard.

15. Therefore, it would still be open for the petitioners to

obtain necessary statistics and if any modification of the

guidelines is necessary in future, they will be at liberty to

submit an appropriate representation to the HPC which

would in that circumstance look into the same and arrive at

a conclusion at its discretion depending on the need or

otherwise to modify its guidelines. In that view, we are of

the opinion that when such factual consideration to achieve

the object alone is necessary and the HPC is constituted for

the very purpose, interference in a judicial proceeding of the

present nature to alter the criteria would not arise unless it

is shown to be so arbitrary that no reasonable person can

accept. But in circumstances where there is any

individuous discrimination amongst the prisoners in same

category and similarly placed, it would be open for the

competent Court to examine the same to that limited extent 15

when grievance is raised by the person who is denied the

benefit if he/she is entitled to such benefit.

16. With the afore­stated observations, the above petition

stands dismissed. No order as to costs. Pending

application, if any, stands disposed of.

..…………....................CJI.

(S. A. Bobde)

…..…………....................J. (A. S. Bopanna)

..…..………......................J. (V. Ramasubramanian) September 22, 2020 New Delhi