Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. Paragraph 647 is inpari materia with Rule 20 of the Statutory Rules.
13. The State of Haryana, however, formulated a policy in regard B to pre-mature release of life convicts in terms whereof the cases for remission were required to be considered after completion of 10 years of actual imprisonment and 14 years including remission. The said policy, however, was reformulated on or about 12.04.2002; the relevant portion whereof is as under: c "Convicts whose death sentence Their cases may be considered after has been commuted to life completion of 20 years of actual imprisonment and convicts who sentence and 25 years total have been imprisonment for life sentence with remissions. having committed a heinous crime n· such as:- -4, (i) Murder after rape repeated chained rape/ unnatural offences. (ii) Murder with intention for the ransom. (iii) Murder of more than two persons. (iv) Persons convicted for second time for murder. (v) Sedition with murder. ._::z (a) Convicts who have been Their cases may be considered after imprisoned . for life having completion of 14 years of actual committed a heinous crime such sentence including their trial period, as: provided that the total period of (i) Murder with wrongful such sentence including remissions confinement for extortion/ is not less than 20 years."· r. robbery. (ii) Murder while undergoing life sentence i ,C ……; . STATEv. MAHENDERSINGH[SINHA,J.] (iii) Murder with dacoity (iv) Murder with offence under TADA Act, 1987 (v) Murder with untouchability (offences) Act, 195 5 (vi) Murder in connection with dowry. (vii) Murder of a child under the age 14 years.
14. The writ petition preferred by the respondents questioning the constitutionality of the said policy decision has been allowed by the High Court on the premise that no discrimination could be made inter se amongst the life convicts; all of them being similarly situated and, thus, the purported classification on the ground of number of murders was arbitrary and c discriminatory.
15. The State ofHaryana is, thus, before us.
16. Mr. P .N. Misra, learned senior counsel appearing on behalf of the appellant, submitted that the State having an unfettered right to formulate a policy decision in regard to remission of sentence, the High E Court committed a manifest error in arriving at the aforementioned conclusion; particularly, having regard to the provisions contained in Sections 54 and 55 of the Indian Penal Code and Section 433A of the Code of Criminal Procedure, 1973.
17. The learned counsel would contend that the executive F government of the State in exercise of its constitutional power under Article 161 of the Constitution of India can formulate such a policy decision and the same has been approved by this Court and in that view of the matter it can also reformulate the policy from time to time.
18. Article 14, learned counsel would contend, does not forbid G reasonable classification. Such a policy decision having been formulated for the benefit of the convicts themselves, as in terms of Section 433A of the Code of Criminal Procedure, a convict does not have any constitutional or statutory right of remission of sentence, cannot be held to be unconstitutional. (2007] 11 S.C.R.
19. Mr. Vijay Hansaria, learned senior counsel appearing on behalf of the respondents, on the other hand, would submit that the right to be considered for obtaining remission itself is a fundamental right. According to the.learned counsel, the said policy decision, if taken into consideration in the backdrop of the criminal case in which the respondents had been B convicted, would lead to an inference of hardship inasmuch as although they have been found to be guilty for murder of more than one person, the same arose out of a land dispute, and although not accepted by the Trial Court, a plea of self-defence was also raised.
20. Mr. B. Malik, learned senior counsel appearing on behalf of some C of the respondents, supplemented the submissions of Mr. Hansaria stating that no policy decision could be formulated in derogation of the Statutory Rules and in any event, the said policy decision would have prospective operation and, thus, would not apply in the fact of this case, as the respondents have been convicted in the year 1988.
21. The State indisputably is entitled to take a prison policy as contra- distinguished from a sentencing policy. The Prisons Act, 1894 was enacted to amend the law relating to Prisons. Sub-section (5) of Section 59 thereof empowers the State Government to make rules for the award of marks and shortening of sentences. The State of Punjab, pursuant to the said E power, framed rules.
22. The Rules put the convicts into three categories. It also defines the term 'life convicts'. Whereas a classification had been made from amongst the convicts' having regard to the gravity of the offences committed by them, indisputably no classification has been made on the F basis of the number of deaths which might have taken place at the hands of the persons. The State apart from making the Statutory Rules, as noticed hereinbefore, had been issuing executive instructions.
23. Section 432 of the Code of Criminal Procedure provides for power to suspend or remit sentences. Section 433 provides for power G to commute sentence. Section 433A, which was inserted in the Code of Criminal Procedure by Act No. 45 of 1978 and which came into force with effect from 18.12.1978, provides that 'notwithstanding anything · >- contained in Section 432, no convict shall be released from prison unless he has served at least 14 years of imprisonment where a sentence of imprisonment for life has been imposed'. t– —i STATE v. MAHENDERSINGH [SINHA,J.]
24. We may also notice Sections 54 and 55 of the Indian Penal Code A, which read as under: "54 – Commutation of sentence of death : In every case in which sentence of death shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for any other punishment provided by this Code. B ·j 5 5 – Commutation of sentence of imprisonment for life : In every case in which sentence of imprisonment for life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years." c
25. 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. D' .__
26. The question, however, which would inter alia arise for consideration is as to whether new policy decision adopted by the State of Haryana will have a prospective operation.
27. At the point of time when the respondents were convicted, viz., in the year 1988, for consideration of their cases for remission, the following conditions were required to be fulfilled: (i) They should have undergone at least 8112 years of the substantive or actual sentence (ii) They should have also undergone 14 years of sentence F including the period of remission earned. Indisputably, however, the same was subject to Section 433A of the Code of Criminal Procedure.
28. Validity or otherwise of Section 433A of the Code of Criminal Procedure came up for consideration before a Constitution Bench of this G, Court in Maru Ram V. Union of India and Ors., [1981] 1 sec 107 wherein this Court inter alia held: "54. The major submissions which deserve high consideration may now be taken up. They are three and important in their outcome ,__. t in the prisoners' freedom from behind bars. The first turns on the "prospectivity" (loosely so called) or otherwise of Section 433-A. We have already held that Article 20(1) is not violated but the present point is whether, on a correct construction, those who have been convicted prior to the coming into force of Section 433- A are bound by the mandatory limit. If such convicts are out of its coils their cases must be considered under the remission schemes and "short-sentencing" laws. The second plea, revolves round "pardon jurisprudence", if we may coarsely call it that way, enshrined impregnably in Articles 72 and 161 and the effect of c Section 433-A thereon. The power to remit is a constitutional power and any legislation must fail which seeks to curtail its scope and emasculate its mechanics. Thirdly, the exercise of this plenary power cannot be left to the fancy, frolic or frown of Government, State or Central, but must embrace reason, relevance and reformation, as all public power in a republic must. On this basis, we will have to scrutinise and screen the survival value of the various remission schemes and short-sentencing projects, not to test their supremacy over Section 433-A, but to train the wide and (' . beneficent power to remit life sentences without the hardship of fourteen fettered years."
29. In regard to the first point, it was held that a person convicted before coming into force of Section 433A of the Cod~ of Criminal Procedure goes out of the pale thereof and will enjoy the benefits as had accrued to him. In regard to the second point, it was held that Articles 72 and 161 of the Constitution oflndia must yield to Section 433A of the Code of .:), Criminal Procedure. The Constitution Bench was of the opinion that remission schemes offer healthy motivation for better behaviour, inner improvement and G development of social fibre. It was observed that remission and short sentencing scheme provides for good guidelines for exercise of pardon t- power, a jurisdiction meant to be used as often and as systematically as . r- )L_ possible and not to be abused, much as the temptation so to do may press upon the men of power. It was also opined: …( STATEv. MAHENDERSINGH[SINHA,J.] ._ "(10) Although the remission rules or short-sentencing provisions A proprio vigore may not apply as against Section 433-A, they will override Section 433-A if the Government, Central or State, guides itself by the selfsame rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions B i and accepted penological thinking a desirable step, in our view the present remission and release schemes may usefully be talcen as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, Section 433-A is itself treated as a guideline for c exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme."
30. However, in Sadhu Singh and Ors. v. State of Punjab, [1984] D 2 SCC 310, although this Court noticed the aforementioned binding precedent in Maru Ram (supra) wiJiout dwelling upon the question in depth, while interpreting the provisions of paragraph 516-B of the Jail Manual, opined that the same does not have the force of a statutory rule and, thus, it would be open to the State Government to alter or amend or even withdraw such executive instruction stating: "6 …… .In other words any existing executive instructions could be substituted by issuing fresh executive instructions for pr~ssing,the cases of lifers for premature release but once issued these must be uniformly and invariably applied to all cases oflifers so as to avoid the charge of discrimination under Article 14." The contention that those convicts who had been sentenced to death but whose sentence on mercy petitions has been commuted to life imprisonment will be governed by the 1976 instructions was negatived. This Court, however, upheld the right of two convicts whose cases G c were entitled to be considered for pre-mature release immediately in view of 1976 instructions. Unfortunately, the attention of this court was nqt drawn to the relevant paragraphs of the decision in Maru Ram (supra).
31. We may notice that the question has been considered by thi~ Court in State of Punjab and Ors. v. Joginder Singh and Ors., [(1990) H A 2 SCC 661] wherein it was held: c "9 …. Even in such cases Section 433-A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years. In the case of other 'lifers' the insistence under the 1971 amendment is that he should have a period of at least 8 112 years of incarceration before release. The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433-A of the Code. Since Section 433-A is prospective, ·so also would be the I 97 I and I 976 amendments. 11. We, therefore, find it difficult to uphold the view taken by the High Court in this behalf. We may make it clear that paragraph 516-B insofar as it stands amended or modified by the 1971 and 1976 executive orders is prospective in character" [Emphasis supplied] [See also State of Haryana and Anr. v. Ram Diya, [1990] 2 SCC 701 and Rajender and Ors. v. State of Haryana, [1995] 5 SCC 187].
32. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution oflndia, 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 F 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 and Anr. v. H G Srinivasmurthy, [1976] 1 SCC 817] It is now well-settled that any guidelines which do not have any statutory flavour are merely advisory in nature. They cannot have the force of a statute. They are subservient to the legislative act and the statutory rules. [See Maharao Sahib Shri Bhim Singhji v. Union of India and H Ors., [1981] 1 SCC 166, JR. Raghupathy and Ors. v. State of A.P. j STATEv. MAHENDERSINGH [SINHA,J.] 94~ . ~· and Ors., [1988] 4 sec 364 and Narendra Kumar Maheshwari V. A Union of India, [1990] (Supp) SCC 440]
33. Whenever, thus, a policy decision is made, persons must be treated equally in terms thereof A' fortiori the policy decision applicable. in such cases would be which was prevailing at the time of his conviction. , [See Commissioner of Municipal Corporation, Shim/a v. Prem Lata . B Sood and Ors., (2007) 7 SCALE 737]
34. Furthermore, if the Punjab Rules are applicable in the State of I-iaryana in view of the State Re.organisation Act, no executive instruction , would prevail over the Statutory Rules. The Rules having defined 'convicts' in terms whereof a 'life convict' was entitled to have his case considered c within the parameters laid down therein, the same cannot be taken away by reason of an executive instruction by redefining the term 'life convict'. It is one thing to say that the 'life convict' has no right to obtain remission but it is another thing to say that they do not have any right to be considered at all. Right to be considered emanates from the State's own D exeeutive instructions as also the Statutory Rules. _, Strong reliance, however, has been placed by Mr. Misra on Mohd Munna v. Union of India and Ors., [2005] 7 SCC 417. In that case, a writ petition was filed under Article 32 of the Constitution oflndia by the appellant therein stating that as he had undergone 21 years of imprisonment E he should be set at liberty forthwith having regard to the provisions of Clause 751(c) of the West Bengal Jail Code and Section 6 of the West Bengal Correctional Services Act, 1992. Claim for damages was also advanced. It was in that factual backdrop, this Court held: "14. The Prisons Rules are made under the Prisons Act and the F Prisons Act by itself does not confer any authority or power to commute or remit sentence. It only provides for the regulation of the prisons and for the terms of the prisoners confined therein. Therefore, the West Bengal Correctional Services Act or the West Bengal Jail Code do not confer any special right on the petitioner G herein." –"'( . In the said decision, unfortunately, againMaru Ram (supra) was not considered. In any event, the respondents had inter alia prayed for payment of dan1ages.
35. Reliance was also placed by Mr. Misra on Epuru Sudhakar H ·-1_· A and Anr. v. Govt. of A.P. and Ors., [2006] 8 SCC 161. Therein, a Division Bench opined: "65. Exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public considerations alone. The President and the Governor are the sole judges of the sufficiency of facts and of the c appropriateness of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of exdusive cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision This is the basic working test to be applied while granting pardons, · reprieves, remissions and commutations." t Then:: may not be any dispute with regard to the said proposition of 1~ law. But herein we are concerned with the right of the respondents to be considered for remission and not what should be the criteria when the E matter is taken up for grant thereof.
36. We are, therefore, of the opinion that the High Court might not be correct in holding that the State has no power to make any classification at all. A classification validly made would not offend Article 14 of the Constitution of India. We, thus, although do not agree with all the F reasonings of the High Court, sustain the judgment for the reasons stated hereinbefore. It appears that during pendency of the Special Leave, Respondent Nos. 6 and 11 have already been directed to be r~leased. No order, therefor, is required to be passed in their case. So far as the cases of G other respondents are concerned, the same may be considered by the appropriate authority in the light of the observations made hereinabove. 3 7. The appeals are dismissed with the aforementioned observations. ·j– In view of the :findings aforementioned, it is not necessary to pass any order in the contempt matter. The contempt application is dismissed. No costs. H K.K.T. Appeals dismissed.