IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 15333 of 2013 C.W.P. No.

______

PEOPLES UNION FOR CIVIL LIBERTIES

Versus

..Petitioner

STATE OF HARYANA and Another

INDEX
Sr. No. Particulars Dated

..Respondents

Page(s) Court Fees (Rs)

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

List of Dates and Events Memo Of Parties Civil Writ Petition Affidavit Annexure P-1 (Resolution)

17.07.2013 17.07.2013 17.07.2013 17.07.2013 16.07.2013

A 1 2-20 21-22 23 24-29 30-32 33-74 75-86 87

-50/----0.65/3.90/1.95/27.30/14.30/3/-

Annexure P-2 (Hry Good Conduct Act, 1988) 13.09.1988 Annexure P-3 Annexure P-4 (Amendment Act 2012) 14.08.2012

(Judgment, Delhi High Court) 01.05.2012

Annexure P-5 (Extracts of Prison Statistics India) 2011 Power of Attorney 17.07.2013

Rs. 101.10/Notes:
1. The questions of law canvassed in the present petition are contained in para No.33 at Page 17 & 18 thereof. 2. Relevant Statute/Rules: Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 and Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2012 3. Any other case: Nil 4. As per the knowledge of the petitioner, no caveat petition has been filed in the matter. 5. The present petition is in the nature of a P.I.L.

CHANDIGARH DATED: 17.07.2013

(ARJUN SHEORAN) P-867/2011 ADVOCATE COUNSEL FOR THE PETITIONER

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

15333 of 2013 C.W.P. No. ______

PEOPLES UNION FOR CIVIL LIBERTIES

Versus

..Petitioner

STATE OF HARYANA and Another

Total amount of Court Fees Affixed: Rs. 101.10/-

..Respondents

___________________________________________________________________

Chandigarh
DATED: 17.07.2013

(ARJUN SHEORAN)
Advocate P-867/2011 Counsel For The Petitioner

LIST OF DATES AND EVENTS

DATE 13.09.1988

EVENT Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 was published in the Gazette of Haryana

01.10.2012

Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2012, which inserted Section 2(aa) and Section 5A inter alia was published in the Gazette of Haryana

17.07.2013

Filing of the present petition.

Chandigarh
DATED: 17.07.2013

(ARJUN SHEORAN)
Advocate P-867/2011 Counsel For The Petitioner

1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

15333 Civil Writ Petition No. __________ of 2013

PUBLIC INTEREST LITIGATION

MEMO OF PARTIES

PEOPLES UNION

FOR

CIVIL LIBERTIES, PUNJAB

AND

CHANDIGARH

CHAPTER, through its General Secretary Sh. Rajendra Mohan Kashyap s/o Late Shiv Dutt, residing at H.No. 133, Sector 22A, Chandigarh Petitioner Versus 1. STATE HARYANA, Civil Secretariat, Chandigarh through its

OF

Secretary, Law and Legislative Department, Government of Haryana. 2. DIRECTOR GENERAL Haryana, 03-04 (Haryana).
OF

PRISONS, Building,

HARYANA,

Panchkula,

Bays

Sector 14, Panchkula

Respondents

Chandigarh
DATED: 17.07.2013

(ARJUN SHEORAN)
Advocate P-867/2011 Counsel For The Petitioner

A WRIT PETITION IN PUBLIC INTEREST UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR DECLARING ULTRA VIRES SECTION 2(aa) and 5A INTER ALIA OF THE HARYANA GOOD

CONDUCT PRISONERS (TEMPORARY RELEASE), 1988 INSERTED VIDE THE HARYANA GOOD

CONDUCT PRISONERS (TEMPORARY RELEASE) AMENDMENT ACT 2012 WHICH IS NOT IN

CONSONANCE WITH THE LETTER AND SPIRIT OF THE CONSTITUTION OF INDIA, BEING VIOLATIVE OF ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDIA

RESPECTFULLY SHOWETH:

1) That the petitioner is an organization agitating and fighting for human rights and civil liberties in India. The petitioner has taken up cudgels on behalf of the oppressed and weaker sections in defence of their rights in the Honble Supreme Court of India as well as various Honble High Courts across the country. Therefore, the petitioner has locus standi to file the present writ petition and is thus competent to invoke the extraordinary writ jurisdiction of this Honble Court. 2) That the petitioner is a State Chapter, in charge of Chandigarh, Punjab and also currently in charge of Haryana, of the Peoples Union for Civil Liberties, India (hereinafter referred to as PUCL India) which is possibly Indias largest and amongst the most recognized human rights bodies in

3
the country. PUCL India has initiated several legal interventions in human rights and civil liberties issues, and filed several Public Interest Litigation Petitions in the Honble Supreme Court of India and Honble High Courts across India for the enforcement of citizen rights and civil liberties. This has led to several notable and path breaking decisions of the Honble Courts, which include the famous Right to Food case currently under adjudication before the Honble Supreme Court. Instances of reported judgments of the same would include the matter reported as AIR 1997 SC 568, (PUCL v. Union of India) wherein the PUCL had challenged the telephone tapping by the police in the Honble Supreme Court on the ground that the citizen had a right to privacy which was a part of Right to life as per Article 21 of the Constitution of India. In another matter, reported as AIR 1997 SC 1203, the PUCL filed a matter for compensation in a case of a fake encounter. Thereafter, vide CWP No. 1827 of 2004, the PUCL approached the Honble High Court of Punjab and Haryana for the constitution of a State Human Rights Commission for the State of Haryana under the Protection of Human Rights Act, 1993. 3) That the petitioner is acting in a bona fide manner, entirely for public interest of numerous prisoners lodged in the jails situated in the State of Haryana, most of whom are Indian citizens. The petitioner has authorized the its General Secretary, Shri Rajender Mohan Kashyap through the a resolution passed by the Executive Committee dated 16.05.2013. A copy of the said resolution is annexed herewith as ANNEXURE P-1. 4) It is during its work as a human rights and civil liberties organization that it was realised that changes have been made in the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (hereinafter referred to as the Act) and Sections 2(aa) and 5A have been inserted vide the

4
Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2012 (hereinafter referred to as the Amendment Act). Copies of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 and the Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2012 are annexed herewith as ANNEXURE P-2 and ANNEXURE P-3 5) That the Act prescribes for the temporary release of prisoners for good conduct on certain conditions. The Amendment Act, on being passed by the Legislature of the State of Haryana received assent of the Governor of Haryana on 14th September, 2012 and was notified in the Gazette vide Notification dated 1st October, 2012 wherein those labelled hardcore prisoners have been denied the right to be released temporarily or on furlough barring in cases of marriage or death of relatives. 6) That the Amendment Act, apart from inserting Sections 2(aa) and 5A, also made amendments in Section 6 and omitted the proviso to Section 4(1) (b) from the Act. 7) That Section 2 (aa) of the Act now reads as follows: (aa) hardcore prisoner means a person, who (i) has been convicted of dacoity, robbery, kidnapping, for ransom, murder with rape, serial killing, contract killing, murder or attempt to murder for ransom or extortion, causing grievous hurt, death, or waging or attempting to war against Government of India, buying or selling minor for purposes of prostitution or rape with a woman below sixteen years of age or such other offence as the State Government may, by notification, specify; or

5
(ii) during any continuous period of five years has been convicted and sentenced to imprisonment twice or more for commission of one or more of offences mentioned in chapter XII or XVII of the Indian Penal Code, except the offences covered under clause (i) above, committed on different occasions not

constituting part of same transaction and as a result of such convictions has undergone imprisonment atleast for a period of twelve months: Provided that the period of five years shall be counted backwards from the date of second conviction and while counting the period of five years, the period of actual imprisonment or detention shall be excluded. ExplanationA conviction which has been set-aside in appeal or revision and any imprisonment undergone in connection therewith shall not be taken into account for the above purpose; or (iii) has been sentenced to death penalty; or (iv) has been detected of using cell phone or in possession of cell phone/SIM card inside the jail premises; or (v) failed to surrender himself within a period of ten days from the date on which he should have so surrendered on the expiry of the period for which he was released earlier under this Act; 8) That Section 5A of the principal Act, as inserted by the Amendment Act reads as follows: 5A. Special Provisions for Hardcore prisoners.

Notwithstanding anything contained in sections 3 and 4, a hardcore prisoner shall not be released on temporary basis or on furlough:

6
Provided that a hardcore prisoner may be allowed to attend the marriage of his child, grand child or sibling; or death of his grand parent, parent, grand parent in-laws, parent-in-laws, sibling, spouse or child under armed police escort for a period of forty eight hours to be decided by the concerned Superintendent Jail and intimation in this regard with full particulars of hardcore prisoner being released, shall be sent to the concerned District Magistrate and

Superintendent of Police within twenty four hours.

9) That the Section 2(aa) and 5A of the Act, put undue, unfair and arbitrary restrictions on the right of prisoners to be released on furlough or on temporary release, as was possible under the Act prior to the amendments made vide the Amendment Act and this therefore violative of Article 14 and 21 of the Constitution of India. 10)That the Section 3 of the Act, prior to amendments, entitled any prisoner to be released temporarily. Section 4 of the Act, also allowed to the release of eligible prisoners on furlough. However, vide the now deleted proviso to clause (b) of sub-section (1) of section 4 of the Act, such facility of being released on furlough was not allowed to a prisoner who (i) is a habitual offender as defined in sub-section (3) of Section 2 of the Punjab Habitual Offenders (Control and Reform) Act, 1952; or (ii) has been convicted of dacoity or such other offence as the State Government may, by notification, specify.

7
11)That the definition of habitual offender as per sub-section (3) of Section 2 of the Punjab Habitual Offenders (Control and Reform) Act, 1952 is as follows: (3) Habitual Offender means a person (a) who, during any continuous period of five years, whether before or after the commencement of this Act, has been convicted and sentenced to imprisonment more than twice on account of any one or more of the offences mentioned in the Schedule to this Act committed on different occasions and not constituting parts of the same transaction; and (b) who has, as a result of such conviction suffered imprisonments at least for a total period of twelve months. Explanation 1. A conviction which has been set aside in appeal or revision and any imprisonment suffered in connection therwith shall not be taken into account for the above purpose. Explaination 2. In computing the period of five years, any periods spent in jail either under a sentence of imprisonment or under detention shall not be taken into account.

12)Thus, it is apparent from the perusal of the definition of habitual offender defined as per sub-section (3) of Section 2 of the Punjab Habitual Offenders (Control and Reform) Act, 1952, that only a narrow category of prisoners who were habitual in committing crimes and thus had been convicted and imprisoned twice or more for the offences mentioned in the schedule of the abovesaid Act, or had been convicted

8
of dacoity etc, were denied the chance of being temporarily released on furlough. 13) That however, it is pertinent to mention that Section 5A not only bars a hardcore prisoner from being released on furlough, but also from on temporary basis, qua which there existed no bar, prior to the Amendment Act of 2012. 14) That there ought to be a solitary objective behind grant of furlough namely the unification of the prisoner with his family members, friends and society and that purpose which would be defeated in case the prisoner is denied furlough altogether and is to suffer long incarceration by serving entire sentence before he is in a position to come out of the prison. Therefore, good conduct in the prison should be the only relevant criteria while granting furlough/temporary release. 15)That almost a blanket ban from being released from prison on temporary release or on furlough, as envisaged by the Amendment Act, is arbitrary and unconstitutional, as not only there is no reasonable differentia to differentiate prisoners who are barred from being released temporarily or on furlough, but also because the reformatory goals of the Indian penological system are not fulfilled by such arbitrary differentiation. 16)That even the definition of hardcore prisoner in Section 2 (aa) of the Act is excessively arbitrary as it covers a huge number of offences under its ambit, thereby excluding a number of prisoners from being released on furlough or on temporary release. At the same time, the said definition does not cover several offences which are equally, if not more serious in nature. 17)That while barring prisoners sentenced to death penalty appears reasonable owing to the special circumstances of such prisoners, barring other prisoners from being released on furlough or on temporary release, merely because a prisoner has committed an offence, even

9
though only once, is clearly arbitrary, because this assumes that such a prisoner does not deserve the concession of being released at all. 18)That several of the offences listed in Section 2 (aa) of the Act are otherwise not that serious enough in nature, for example the offences of being detected of using a cell phone or in possession of cell phone/SIM Card, as per Section 2 (aa)(iv) of the Act, that the prisoners are grossly miscategorised as hardcore criminals and thereafter are completely precluded from being released temporarily or on furlough for the entire duration of their imprisonment. Similarly, section 2 (aa) of the Act also refers to many fairly vague terms such as contract killing and serial killing without duly defining them and which may possibly be prone to misuse. This arbitrary curtailment of rights is not just bad for the prisoners per se, but also for the society as a whole as the efforts for reformation of the prisoner and being accepted by society, when out on temporary release and/or furlough are thereby defeated. 19)That thus it is pertinent to note that there has been no real application of mind while deciding who a hardcore prisoner should be, as per Section 2 (aa), incorporating a sweeping and broad category of prisoners and a time tested definition of habitual prisoner as contained in the subsection (3) of Section 2 of the Punjab Habitual Offenders (Control and Reform) Act, 1952 has been discarded. 20)That in a similar case, titled Dinesh Kumar v. Govt. of NCT of Delhi, WP (C) 1229 of 2012 decided on 01.05.2012 by an Honble Division Bench of the Honble Delhi High Court (hereinafter referred to as Dinesh Kumars Case) wherein the constitutional challenge was upheld to the Clause 26.4 of the Parole/Furlough Guidelines, 2010, which provided that in order to be eligible to obtain furlough, the prisoner must fulfil the following criteria:- 26.4. The prisoner should not have been convicted of robbery, dacoity, arson, kidnapping, abduction, rape and extortion.

10

21)That it was held in the Dinesh Kumars Case: 48. These are, thus, the parameters which can be looked into while denying the furlough in a particular case and particularly those convicted of the offences mentioned in Clause 26.4. We may record that the authorities may be extra cautious in granting a furlough to an inmate convicted of a serious crime against the person and/or whose presence in the community could attract undue public attention, create unusual concern, or depreciate the seriousness of the offense. If the authority approves a furlough for such an inmate, it must place a statement of the reasons for this action. However, their exclusion per se making them ineligible at the outset even from consideration to obtain furlough becomes discriminatory and arbitrary and it cannot have any rational nexus. We find ourselves in difficulty to agree with the reasoning given by the Gujarat High Court in Juvan Singh Lakhubhai Jadeja (supra). 49. To sum up, we hold that the provision contained in Clause 26.4 of Guidelines, 2010 in the present form does not stand judicial scrutiny which makes persons ineligible for furlough merely on the basis of the nature of crime committed by them. It would amount to snatching their right to at least consider their cases for grant of furlough. We thus, strike down this provision as unconstitutional and infringing the Article 14 as well as Article 21 of the Constitution. A copy of the judgment passed in Dinesh Kumars Case is annexed herewith as ANNEXURE P-4. 22)That, similarly, in the present case, the exclusion of the category of hardened criminals is discriminatory and arbitrary and therefore unconstitutional.

11
23)That it must be kept in mind that prisoners who have been in prison for some time and are supposed to have undergone some reformation. Dinesh Kumars judgment states the follows in this regard: 46. It is also to be kept in mind that by the time an application for furlough is moved by a prisoner, he would have spent some time in the Jail. During this period, the various reformatory methods must have been applied. We can take judicial note of this fact, having regard such reformation facilities available in Tihar Jail. One would

know by this time as to whether there is a habit of relapsing into crime inspite of having administered correctional treatment. This habit known as recidivism reflects the fact that the correctional therapy has not brought in the mind of the criminal. It also shows that criminal is a hard core who is beyond correctional therapy. If the correctional therapy has not made in itself, in a particular case, such a case can be rejected on the aforesaid ground i.e. on its merits. Thus, the State would still have the power to reject an application of a prisoner, on merits, after due evaluation. However, the discriminatory and arbitrary restriction wherein a prisoner, merely as a result of committing an offence cannot even apply for furlough is clearly unjustified and liable to struck down as unconstitutional as was done in Dinesh Kumars case.

24)That it must be remembered that even if the newly added sections to the Act are struck down as unconstitutional, there do exist specific and fairly effective safeguards in the hands of the Respondents to deny the right of furlough/temporary visits to a prisoner. The same are contained in the Act itself, in Sections 6, which has also been amended vide the Amendment Act, wherein a prisoner can be denied furlough or temporary release under Sections 4 and 3 of the Act if on the report of

12
the District Magistrate, the State Government is satisfied that the release of such prisoner is likely to endanger the safety and security of the State or the maintenance of public order. 25)That it is pertinent to mention that in the decision of the Honble Three Judge Bench of Supreme Court in the case of Avtar Singh v. State of Haryana, 2002(1) R.C.R.(Criminal) 786, wherein the present Act was under challenge, it was stated that .Section 4 has been enacted as a reformative measures as a prisoner has to show good conduct while in incarceration. 26)That the importance of parole and furlough was underscored in Dinesh Kumars Case wherein it was stated: 21. What follows from the above is that the four main objects which punishment of an offender by the state is intended to achieve are deterrence, prevention, retribution and reformation. There has been substantial diversion from the previously existing popular concept of retribution. Of late the focus has shifted upon the reformation. The earlier criminal law concept of an eye for eye and a tooth for tooth has been replaced by a more humane concept which emphasizes upon the re-allocation of an accused into the society. The concept of parole and furlough are in fact a step towards the accomplishment of this very purpose. 22. The provisions of parole and furlough provide for a humanistic approach towards those lodged in jails. Main purpose of such

provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in

preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to

13
which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. prepare offenders for success. 27) That an arbitrary, illogical and unconstitutional presumption has been made that those persons who have committed the offences listed in Section 2 (aa) of the Act would be hardened criminals for whom commitment of such offences has become a habit or way of life and they would necessarily tend to commit the same crime again and again. Such a presumption is not only ill-presumed but also goes against Article 14 of the Constitution. 28)That it must be remembered, that it has been laid down umpteen times by the Honble Supreme Court that prisoners, merely by virtue of being in prison do not lose their fundamental rights. 29)That even this Honble Court, while dealing with the issue of grant of temporary release to prisoner had stated in the matter of Karan Singh v. State of Haryana, 1996(2) CLJ (Criminal) 190 : Therefore, from the above discussion, it emerges that adequate safeguards to ensure that on the expiry of the period of temporary release of the petitioner, surrenders to the jail custody to undergo the remaining sentence. The recent trend in criminology is towards reformation and not to hate the criminal but the crime, to provide him with all the facilities to enable him to socialize with his family members and also given him an opportunity to come into contact with the other members of the society outside the cold walls of the jail so that he may also for sometime breathe fresh air outside the boundary of the jail and feel the warm affection and love of his family members and give the same to his family members himself. The aim Furloughs can help

14
is not to keep him confined all the with obdurate criminals which may have bad effect on his social out look towards society. The prisoner is not stripped of his fundamental, or other legal rights, save these which are inconsistent with his incarceration, and if any of those rights is violated, the Court cannot be a distant spectator but is to spring into action to see that the aim and objection of the Act is carried out in its letter and spirit. He is to be permitted to socialize with the members of the family and friends, subject, of course, to all valid prison regulations under the Act. The main object is to see that the prisoner comes out of the jail as a different man than the one when he went to the jail. If a criminal comes out of the jail as a better citizen it will go a long way to bring peace in the society. The society is to be reformed and got rid of the criminal persons so as to bring stability, peace, tranquillity, business and prosperity in the society. Many a time, crime is the responsibility of socio-economic milieu and it is the duty of the agencies maintaining the public order and running criminal justice system to see that the crimes are minimized, The prison in modern terms in real sense is no longer a prison of old times but an institution of reformation churning out good citizens from bad ones. 30)That the important of constitutional safeguards and fundamental rights was reiterated in the Dinesh Kumars Judgment as well: 38. There can be no cavil in saying that a society that believes in the worth of the individuals can have the quality of its belief judged, at least in part, by the quality of its prisons and services and recourses made available to the prisoners. Being in a civilized society

organized with law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. If a person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life

15
which constitutes human dignity. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. 39. In Sunil Batra versus Delhi Administration, (1980) 3 SCC 488, Justice D.A.Desai, speaking for himself, the Honble Chief Justice of India and two Honble Judges observed that a convict is in prison under the order and direction of the Court and the Court has, therefore, to strike a just balance between the dehumanizing prison atmosphere and the preservation of interval order and discipline, the maintenance of institutional security against escape, and

rehabilitation of the prisoners. Article 21 guarantees protection of life and personal liberty. Though couched in the negative it confers the fundamental right to life and personal liberty. 40. In Maneka Gandhi versus Union of India, AIR 1978 SC 579, Justice Bhagwati observed that if a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19, which may be applicable in a given situation, exhyopthesis it must also be liable to be tested with reference to Article 14. 41. Justice V.R. Krishna Iyer in Charles Sobraj v. Supdt., Central Jail, AIR 1978 SC 1514, observed that imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to recognize the full panoply of part III enjoyed by free citizens. Further, observed that the axiom of prison justice is the Courts continuing duty and authority to ensure that the judicial warrant which deprives a person of his life or liberty is not exceeded, subverted or stultified. It is a sort of solemn covenant running with the power to sentence. Referring to the decision of Supreme Court in Rustom Cowvasjee Cooper v. Union of India, AIR 1970 SC 1318,

16
and Maneka Gandhi (Supra), it was observed that Prisoners retain all rights enjoyed by free litigants except those lost necessary as an incident of confinement, the rights enjoyed by prisoner's under Article 14, 19 and 21 though limited, are not static and will rise to human heights when challenging situation arise. 42. The Supreme Court in Sunil Batra versus Delhi Administration (Supra) observed Prisons are built with stones of law, and sort behoves the Court to insist that, in the eye of law, prisoners are persons, not animals and punish the deviant guardians of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by Jail officials dressed in a little, brief although when part III is invoked by a convict. For when a prisoner is traumatized, the constitution suffers a shock. The Supreme Court further held that the Court has power and responsibility to intervene and protect the prisoner against may how, crude behaviour. 31)That it is pertinent to mention that there were about 6529 convicts in the State of Haryana as on 31.12.2011 as per the National Crime Record Bureaus Prison Statistics India 2011 (Table 3.3, Page 37). Over 2729 of them are between the ages of 18-30 years i.e. about 41% convicts are fairly young and would surely benefit from furlough visits. Similarly, 44.5% and 13.8% belong to the age between 30-50 years and above 50 years respectively (as per Table 3.14, Page 57). Also, only 5.6% convicted during 2011 were found to be habitual offenders (Table 3.25 of the NCRB Report). Furthermore, as per Table 4.1 of the Report, the convicts convicted for murder are 2983, for dacoity 274 convicts and for robbery 177 convicts were present. Many of them would be included in the list of hardened criminals under the Act. Most of such convicts are either illiterate or barely educated (Table 5.1). As per table 7.2,

17
about 48.3 % of the convicts are serving life sentences and about 18.9% convicts are serving imprisonment of 10-13 years. These statistics clearly show the number and range of people who might be affected by the arbitrary provisions of the impugned Act. Denial of the right to released on furlough would adversely affect many such convicts. Not only this, the exclusion of a number of such convicts from being given furlough would have a highly detrimental effect on not only the convicts but also the society at large. A copy of the relevant tables of the Prisons in India 2011 published by the National Crime Records Bureau, Government of India, as

mentioned above is annexed herewith as ANNEXURE P-5 (COLLY.) . 32)That Section 2(aa) and 5A of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 is arbitrary, unconstitutional and thus ultra vires the Constitution inter-alia on the following grounds: i) The impugned Sections not based on any intelligible differentia and hence violative of Article 14 of the Constitution and also violative of the fundamental right of the affected prisoners to life and liberty under Article 21 of the Constitution. ii) That impugned sections provide for arbitrary criteria for precluding a prisoner from going on temporary release/furlough, by terming bunching prisoners convicted for a wide variety of offences as hardcore prisoners and thereby take away a legal right to be released on furlough/temporary release, on fulfilment of conditions. iii) That the conduct of the prisoner while in prison should be the primary criteria for granting furlough/temporary release under the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 and precluding prisoners merely on the basis of the offence for which they have been convicted is arbitrary and thus unconstitutional.

18
iv) That the impugned Sections do not take into account the humanistic and reformatory nature of the Indian penological system, and arbitrarily presume that merely because a person has been convicted certain offences, the said prisoner does not get the right to be released on furlough/temporary release. 33) That the main law points involved in the present writ petition are: i) Whether Section 5A of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 is illegal, unjustified and arbitrary, having no reasonable nexus with the purpose of the Act and hence, violative of Article 14 and 21 of the Constitution of India? ii) Whether Section 2 (aa) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 is illegal, unjustified and arbitrary, having no reasonable nexus with the purpose of the Act and hence, violative of Article 14 and 21 of the Constitution of India? iii) Whether the unjust, arbitrary bar on the release of hardcore prisoners temporarily or on furlough under the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 violative of Article 14 and 21 of the Constitution of India? iv) Whether the conduct of the prisoner while in prison should be the primary criteria for granting furlough/temporary release under the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988? 34)That there is no alternative efficacious remedy available with the petitioner except to approach this Honble Court by way of filing the present writ petition. No appeal or revision lies in the conspectus of the present case. 35)That the Petitioner has not filed any such or similar writ petition either in this Honble Court or in the Honble Supreme Court of India. 36)That the Petitioner has no other alternative remedy of appeal or revision except to approach this Honble Court under Article 226 of the Constitution of India.

19
PRAYER It is therefore respectfully prayed that the record of the case may be summoned and after perusal of the same, this Honble Court may be pleased to: (i) Issue appropriate writ holding Section 2 (aa) & 5A inter alia of the Haryana Good Conduct Prisoners (Temporary Release), 1988 inserted vide the Haryana Good Conduct Prisoners (Temporary Release) Amendment Act 2012 as ultra vires; (ii) Issue appropriate writ(s) directing the respondents to frame a more humane temporary release/furlough policy; (iii) Stay the operation of the amendments made vide the Haryana Good Conduct Prisoners (Temporary Release) Amendment Act 2012 in the interim period, pending adjudication of the instant petition; (iv) Issue any other writ, order or direction which this Honble Court deems fit under the facts and circumstances of the present case; (v) Dispense with the issuance of advance notices upon the Respondents and exempt the Petitioner from filing certified copies of Annexures P-2 to P-5, and allow true typed copies of the same;

(PETITIONER)

Chandigarh
DATED: 17.07.2013

(ARJUN SHEORAN)
Advocate P-867/2011 Counsel For The Petitioner

VERIFICATION

20
Verified that the contents of my above writ petition from para 1 to 36 are true and correct to my knowledge. No part of it is false and nothing material has been concealed therein.

Chandigarh DATED: 16.07.2013

(DEPONENT)

21
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Writ Petition No. __________ of 2013 PUBLIC INTEREST LITIGATION

PEOPLES UNION

FOR

CIVIL LIBERTIES, PUNJAB

AND

CHANDIGARH

CHAPTER, through its General Secretary Sh. Rajendra Mohan Kashyap s/o Late Shiv Dutt, residing at H.No. 133, Sector 22A, Chandigarh Petitioner Versus 1. STATE HARYANA, Civil Secretariat, Chandigarh through its

OF

Secretary, Law and Legislative Department, Government of Haryana and Another Respondents AFFIDAVIT SH. RAJINDER MOHAN

OF

KASHYAP S/O LATE SHIV DUTT,

RESIDING AT

H.NO. 133,
OF

SECTOR 22A, CHANDIGARH, GENERAL SECRETARY PEOPLES UNION

FOR

CIVIL LIBERTIES, CHANDIGARH,

HARYANA AND PUNJAB CHAPTER,

I, the above named deponent, do hereby solemnly affirm and declare as under:

22
1. That the deponent is fully conversant with the facts of the case and is therefore, competent to swear the present affidavit. 2. That the averments made in para 1 to para 36 are true and correct to my knowledge. No Part of it is false and nothing material has been concealed therein. 3. That the deponent is filling the accompanying petition in public interest and has no personal interest in the same.

Chandigarh Dated: 17th July, 2013 DEPONENT

VERIFICATION Verified that the contents of my above affidavit are true and correct to my knowledge. No part of it is false and nothing material has been concealed therein.

Chandigarh Dated: 17th July, 2013 DEPONENT

ANNEXURE P-1

RESOLUTION
Unanimously resolved at a meeting of the Executive Committee of the Peoples Union of Civil Liberties [PUCL] Punjab at Chandigarh held on 16th June, 2013, under the Chairmanship of the President, Shri Roshan Lal Batta that Shri Rajender Mohan Kashyap, General Secretary of the PUCL Punjab and Chandigarh Chapter is hereby authorized to sign all papers on behalf of the PUCL Punjab to file a Writ Petition in the Honble Punjab and Haryana High Court to challenge Sections SECTION 2(aa) and 5a inter alia of the Haryana Good Conduct Prisoners (Temporary Release), 1988, introduced by the Haryana Good Conduct Prisoners (Temporary Release) Amendment Act 2012 and appoint Sh. Arjun Sheoran, Advocate to prepare and argue the said matter.

ROSHAN LAL BATTA

President

RAJEEV GODARA
General Secretary

RAJENDER MOHAN KASHYAP

General Secretary

ANNEXURE P-2
1988: HARYANA ACT, 28] GOOD CONDUCT PRISONERS

24

(TEMPORARY RELEASE)

THE HARYANA GOOD CONDUCT PRISONERS (TEMPORARY RELEASE) ACT, 1988

(HARYANA ACT NO. 28 OF 1988)

Table of Contents

Sections 1. 2. 3. 4. 5. 6. 7. 8. Short title, extent and commencement. Definition. Temporary release of prisoners on certain grounds. Temporary release of prisoners on furlough. Exclusion of certain days in computing period under sections 3 and 4. Prisoners not entitled to be released in certain cases. Journey expenses of poor prisoners to be borne by State Government. Liability of prisoners to surrender on expiry of release period and consequences of overstaying. 9. Penalty for failure to surrender. 10. Power to make rules. 11. Repeal and savings.

25
1988: HARYANA ACT, 28] GOOD CONDUCT PRISONERS (TEMPORARY RELEASE)
1

[THE HARYANA GOOD CONDUCT PRISONERS (TEMPORARY RELEASE) ACT, 1988]

(HARYANA ACT NO. 28 OF 1988) (Received the assent of the Governor of Haryana on the 8th September, 1988 and was first published in the Haryana Government Gazette (Extraordinary), Legislative Supplement part 1 of the 13th September, 1988.) 1 Year 1988 2 No. 28 3 Short title The Haryana Good Conduct Prisoners (Temporary Release) Act, 1988. 4 Whether repealed or otherwise affected by Legislation ---

For statement of Objects and Reasons see Haryana Government Gazette (Extraordinary), dated the 21st August, 1988, page

26
AN ACT To provide for the temporary release of prisoners for good conduct on certain conditions. BE it enacted by the Legislature of the state of Haryana in the Thirtyninth Year of the Republic of India as follow:Short title, extent 1. (1) This Act may be called the Haryana Good conduct Prisoners and (Temporary Release) Act, 1988. commencement. (2) It extends to the whole of the State of Haryana. (3) It shall come into force on such date as the State Government may, by notification, in the Official Gazette, appoint in this behalf. Definitions. 2. In this Act, unless the context otherwise requires,(a) District Magistrate means the District Magistrate of the district within whose jurisdiction the prisoner after his temporary release under this Act, is likely to reside during the period of his release; (b) member of prisoners family means the husband, wife, son, daughter, father, mother, brother or sister of the prisoner; (c) prescribed means prescribed by the rules made under this Act; (d) prisoner means a person confined in prison or jail or other institution of like nature under a sentence of imprisonment for life or any other authority exercising the powers of a Criminal Court; (e) Superintendent of Jail means the officer incharge of the prison or Jail or other institution of like nature in which the prisoner is undergoing his sentence of imprisonment for life or imprisonment. Temporary release 3. (1) The State Government may, in consultation with the District of prisoners on Magistrate or any other officer appointed in this behalf, by notification certain grounds. in the official Gazette and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in sub-Section (2), any prisoner, if the State Government is satisfied that(a) a member of the prisoners family had died or is seriously ill or the prisoner himself is seriously ill; or (b) the marriage of prisoner himself, his son, daughter, grandson, grand daughter, brother, sister, sisters son or daughter is to be celebrated; or (c) the temporary release of the prisoner is necessary for sloughing, sowing or harvesting or carrying on any other agricultural operation on his land or his fathers undivided land actually in possession of the prisoner; or (d) it is desirable to do so for any other sufficient cause. (2)The period for which a prisoner may be released shall be

27
determined by the State Government so as not to exceed(a) where the prisoner is to be released on the grounds specified in clause (a) of sub-section (1), three weeks; (b) where the prisoner is to be released on the ground specified in clause (b) or clause (d) of sub-section (1), four weeks; and (c) where the prisoner is to be released on the grounds specified in clause of sub-section (1), six weeks; Provided that the temporary release under clause can be availed more than once during the year, which shall not, however, cumulatively exceed six weeks. (3) The period of release under this section shall not count towards the total period of the sentence of a prisoner. (4) The State Government may, by notification, authorize any officer to exercise its powers under this section in respect of all or any other ground specified there under. Temporary release 4. (1) The State Government or any other officer authorized by it in of prisoners on this behalf may, in consultation with such other officer as may be furlough. appointed by the state Government, by notification, and subject to such conditions and in such manner as may be prescribed, release temporarily, on furlough, any prisoner who has been sentenced to a term of imprisonment of not less than four years and who(a) has, immediately before the date of his temporary release, undergone continuous imprisonment for a period of three years, inclusive of the persistence detention, if any; (b) has not during such period committed any jail offence (except an offence punished by a warning) and has earned at least three annual good conduct remission; provided that nothing herein shall apply to a prisoner who(i) is a habitual offender as defined in sub-section (3) of section 2 of Punjab Habitual Offenders (Control and Reform) Act, 1952; or (ii) has been convicted of dacoit or such other offence as the State Government may, by notification, specify. (2) The period of furlough for which a prisoner is eligible under subsection (1) shall be three weeks during the first year of his release and two weeks during each successive year thereafter. (3) Subject to the provisions of clause (d) of sub-section (3) of section 8, the period of release referred to in sub-section (1) shall count towards the total period of the sentence undergone by a prisoner. Exclusion of 5. For the purpose of calculating the period of temporary release of a certain days in prisoner under sections 3 and 4, the dates of departure from and arrival computing period at the prison shall be excluded. under sections 3
and 4. Prisoners not entitle to be released in certain cases.

6. Notwithstanding anything contained in sections 3 and 4, no prisoner shall be entitled to be released under this Act if, on the report of the District Magistrate, the State Government or an officer authorized by it i thi b h lf i ti fi d th t hi l i lik l t d th

28
in this behalf is satisfied that his release is likely to endanger the security of the State or the maintenance of public order. Journey expenses 7. If on the report of the District Magistrate, the State Government is of poor prisoners satisfied that prisoners family cannot bear the expenses of his journey to be borne by from and to the prison after his temporary release under this Act, the State Government. expenses may be borne by the State Government to such extent and in such manner as may be prescribed. Liability of 8. (1) On the expiry of the period for which a prisoner is released prisoner to under this Act, he shall surrender himself to the Superintendent of the surrender on Jail from which he was released. expiry of release
period and consequences of overstaying.

Penalty for failure to surrender.

Power to make rules.

(2) If a prisoner does not surrender himself as required by subsection (1) within a period of ten days from the date on which he should have so surrendered, he may be arrested by any Police Officer or Prison Officer without a warrant and shall be delivered over to the officer incharge of the prison from which he was released to undergo the un expired portion of his sentence. (3) If a prisoner surrenders himself to the Superintendent of the Jail from which he was released within a period of ten days of the date on which he should have so surrendered, but fails to satisfy the Superintendent of the Jail that he was prevented by any sufficient cause from surrendering himself immediately on the expiry of the period for which he was released, all or any of the following penalties shall after affording the prisoner a reasonable opportunity of being, be awarded to him by the Superintendent of the Jail, namely:(a) a maximum cut of five days remission for each day of overstay; (b) stoppage of canteen concession for a maximum period of one month; (c) with holding concession of either interviews or letters or both for a maximum period of three months; (d) the period of temporary release on furlough of the prisoner under section 4 shall not be counted towards his sentence; (e) warning; (f) reduction from higher to a lower class or grade. 9. (1) Any prisoner who is liable to be arrested under sub-section (2) of section 8, shall be punishable with imprisonment of either description which may extend to three years and with fine. (2) An offence punishable under sub-section (1) shall be deemed to be cognizable and non-boilable Explanation. The punishment in this section is in addition to the punishment awarded to the prisoner for the offence for which he was convicted. 10. (1) The State Government may, by notification, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-

29
(a) the execution by the prisoner (including his sureties) of bond for his good behavior during the release period and for his surrender on the expiry of such period; (b) the amount for which and the form and manner in which such bonds shall be furnished; (c) the forfeiture of the amount of bonds in case of breach of any of its terms; (d) the conditions on which and the manner in which prisoners may be released temporarily under this Act; (e) the manner in which the District Magistrate or any other officer may be consulted in the matter of temporary release of a prisoner; (f) the extent to which and the manner in which journey expenses of poor prisoner shall be borne by the State Government; (g) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. 11. The Punjab Good Conduct Prisoner (Temporary Release) Act 1962 (Punjab Act No. 11 of 1962), in its application to the state of Haryana, is hereby repealed; Provided that such repeal shall not affect,(a) the previous operation of the act so repealed or anything duly done or suffered there under; or (b) any right, privilege, obligation or liability acquired or incurred under the Act so repealed; or (c) any penalty, forfeiture or punishment, incurred in respect of any offence committed against the Act so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed: Provided further that anything done or any action taken under the Act so repealed shall be deemed to have been done or taken under the corresponding provision of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act.

Repeal and savings.

ANNEXURE P-3

30
HARYANA GOVT. GAZ. (EXTRA.) OCT. 1, 2012 (ASVN. 9, 1934 SAKA) PART I HARYANA GOVERNMENT LAW AND LEGISLATIVE DEPARTMENT Notification The 1st October, 2012 No. Leg. 25/2012.- The following Act of the Legislature of the State of Haryana received the assent of the Governor of Haryana on the 14th September, 2012, and is hereby published for general information:--HARYANA ACT NO. 20 OF 2012 THE HARYANA GOOD CONDUCT PRISONERS (TEMPORARY RELEASE) AMENDMENT ACT, 2012. AN ACT Further to amend the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 Be it enacted by the Legislature of the State of Haryana in the Sixty-third Year of the Republic of India

1.

This Act may be called the Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2012

2. In the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (hereinafter called the principal Act), in section 2, after clause (a), the following clause shall be inserted, namely:-(aa) hardcore prisoner means a person, who

31
(i) has been convicted of dacoity, robbery, kidnapping, for ransom, murder with rape, serial killing, contract killing, murder or attempt to murder for ransom or extortion, causing grievous hurt, death, or waging or attempting to war against Government of India, buying or selling minor for purposes of prostitution or rape with a woman below sixteen years of age or such other offence as the State Government may, by notification, specify; or (ii) during any continuous period of five years has been convicted and sentenced to imprisonment twice or more for commission of one or more of offences mentioned in chapter XII or XVII of the Indian Penal Code, except the offences covered under clause (i) above, committed on different occasions not constituting part of same transaction and as a result of such convictions has undergone imprisonment atleast for a period of twelve months: Provided that the period of five years shall be counted backwards from the date of second conviction and while counting the period of five years, the period of actual imprisonment or detention shall be excluded. ExplanationA conviction which has been set-aside in appeal or revision and any imprisonment undergone in connection therewith shall not be taken into account for the above purpose; or (iii) has been sentenced to death penalty; or (iv) has been detected of using cell phone or in possession of cell phone/SIM card inside the jail premises; or (v) failed to surrender himself within a period of ten days from the date on which he should have so surrendered on the expiry of the period for which he was released earlier under this Act;

3. Proviso to clause (b) of sub-section (1) of section 4 of the principal Act, shall be omitted. 4. After section 5 of the principal Act, the following section shall be inserted, namely:-5A. Special Provisions for Hardcore prisoners.Notwithstanding anything contained in sections 3 and 4, a hardcore prisoner shall not be released on temporary basis or on furlough:

32
Provided that a hardcore prisoner may be allowed to attend the marriage of his child, grand child or sibling; or death of his grand parent, parent, grand parent in-laws, parent-in-laws, sibling, spouse or child under armed police escort for a period of forty eight hours to be decided by the concerned Superintendent Jail and intimation in this regard with full particulars of hardcore prisoner being released, shall be sent to the concerned District Magistrate and Superintendent of Police within twenty four hours.

5. For section 6 of the principal Act, the following section shall be substituted, namely:-6 (1) Notwithstanding anything contained in sections 3 and 4, no prisoner shall be entitled to be released under this Act if, on the report of the District Magistrate, the State Government or an officer authorized by it in this behalf is satisfied that his release is likely to endanger the security of the State or the maintenance of public order or cause reasonable apprehension of breach of peace. (2) The District Magistrate, the State Government or the officer authorized to

release the prisoner as provided in sections 3 and 4 of the Act shall take report from the Police within a specified time frame. (3) In case of non-recommendation for release by the Police, the release granting authority shall pass a speaking order, if he disagrees with the report submitted to him. 6. In sub-section (1) of section 9 of the principal Act, for the words three years and with fine, the words three years but shall not be less than two years shall be substituted.

MANJIT SINGH Secretary to Government, Haryana Law and Legislative Department TRUE COPY

ADVOCATE

ANNEXURE P-4

33

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 1229 OF 2012 W.P.(C) 1230 OF 2012 W.P.(C) 1231 OF 2012 W.P.(C) 8279 OF 2010

Judgments Reserved on:20.3.2012. Judgment Delivered on:01.5.2012 W.P.(C) 1229 OF 2012 . . . PETITIONER Mr. Vivek Sood, Advocate.

(1)

DINESH KUMAR Through : VERSUS GOVT. OF NCT OF DELHI Through:

RESPONDENT Mr. N.Waziri, Standing Counsel with Ms.Zubeda Begum and Ms. Neha Kapoor, Advocates for Govt. of NCT of Delhi. Mr. Pawan Sharma, Standing Counsel (Crl.) for Govt. of NCT of Delhi.

(2)

W.P.(C) 1230 OF 2012 . . . PETITIONER Mr. Vivek Sood, Advocate

IBRAHIM Through : VERSUS GOVT. OF NCT OF DELHI

RESPONDENT
Page 1 of 42

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

34
Through: Mr. N.Waziri, Standing Counsel with Ms.Zubeda Begum and Ms. Neha Kapoor, Advocates for Govt. of NCT of Delhi. Mr. Pawan Sharma, Standing Counsel (Crl.) for Govt. of NCT of Delhi.

(3) W.P.(C) 1231 OF 2012 LUV KUSH Through : VERSUS GOVT. OF NCT OF DELHI Through:

. . . PETITIONER Mr. Vivek Sood, Advocate

RESPONDENT Mr. N.Waziri, Standing Counsel with Ms.Zubeda Begum and Ms. Neha Kapoor, Advocates for Govt. of NCT of Delhi. Mr. Pawan Sharma, Standing Counsel (Crl.) for Govt. of NCT of Delhi.

(4) W.P.(C) 8279 OF 2010 SHASHI SHEKHAR @NEERAJ Through : VERSUS GOVT. OF NCT OF DELHI Through:

. . . PETITIONER Mr. Vivek Sood, Advocate

RESPONDENT Mr. N.Waziri, Standing Counsel with Ms.Zubeda Begum and Ms. Neha Kapoor, Advocates for Govt. of NCT of Delhi.

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 2 of 42

35
Mr. Pawan Sharma, Standing Counsel (Crl.) for Govt. of NCT of Delhi. CORAM :HONBLE MR. JUSTICE A.K. SIKRI HONBLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE:

1.

In all these writ petitions challenge is to the constitutional validity of

Clause 26.4 of the Parole/Furlough: Guidelines, 2010. These Guidelines are approved by the Lt. Governor, Govt. of NCT of Delhi which are applicable in case of convicts i.e. those who have been convicted by a competent court under various laws and are undergoing sentencing in prison. The purpose of the Guidelines is to regulate applications for parole and furlough and to ensure that they are considered in a fair and transparent manner. Separate

provisions for regular parole as well as furlough are made in these Guidelines. Insofar as grant of furlough is concerned which is the subject matter of these writ petitions, Clause 24 states that a prisoner who is sentenced to 5 years or more of rigorous imprisonment and has undergone imprisonment for 3 years or more period excluding remission, can be released on furlough. A prisoner is entitled 7 weeks of furlough in a year. The first spell can be of 3 weeks while the subsequent spells have to be of 2 weeks each. Clause 26.4
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 3 of 42

36
mentions eligibility conditions which a prisoner has to fulfill before he would be eligible to obtain furlough. 2. Clause 26, in toto, is reproduced as under:26. In order to be eligible to obtain furlough, the prisoner must fulfill the following criteria:26.1 Good conduct in the prison and should have earned three Annual Good Conduct Remissions and continues to maintain good conduct; 26.2 The prisoner should not be a habitual offender; 26.3 The prisoner should be a citizen of India. 26.4 The prisoner should not have been convicted of robbery, dacoity, arson, kidnapping, abduction, rape and extortion. 26.5 The prisoner should not have been convicted of any offence relating to any offence against the State such as sedition; 26.6 The release of the prisoner should not be considered dangerous or deleterious to the interest of national security or there exists reasonable ground to believe that the convict is involved in a pending investigation in a case involving serious crime; 26.7 The convict is no such a person whose presence is considered highly dangerous or prejudicial to the public peace and tranquility by the District Magistrate by his home district.

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 4 of 42

37
3. As is clear from Clause 26.4, any prisoner who has been convicted for

an offence of robbery, dacoity, arson, kidnapping, abduction, rape and extortion is not eligible for grant of furlough. All the petitioners have been convicted of one or the other offences which is covered by Clause 26.4 and for this reason, having regard to the aforesaid Guidelines, they are not rendered ineligible for grant of furlough. According to the petitioners, this Clause is arbitrary and unreasonable and not based on any intelligible It is also

differentia and hence violative of Article 14 of the Constitution.

contended that it violates fundamental right of the petitioner to life and liberty under Article 21 of the Constitution. 4. Before we deal with this contention in detail, we may record the

background of these petitioners, in brief. W.P.(C) 8279/2010:(Shashi Shekhar @ Neeraj) 5. The petitioner Shashi Shekhar @ Neeraj was convicted under Sections

302, 392, 397 IPC in case FIR No. 538/1995, P.S. Vasant Kunj on 27.2.2002 by the Additional Sessions Judge and sentenced to rigorous imprisonment for life. The petitioner was also convicted under Sections 302,392,397,216-A IPC in case FIR No. 76/1996, PS C.R. Park on 23.4.2004 by the Additional
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 5 of 42

38
Sessions judge and sentenced to rigorous imprisonment for life on 28.4.2004 The petitioner was also convicted under Section 302 IPC in case FIR No. 509/1995 P.S. Vasant Kunj on 23.4.2004 and sentenced on 28.4.2004 by the Additional Sessions Judge to rigorous imprisonment for life. The petitioner claims that as a convict in prison he has maintained a good, disciplined behaviour and nothing adverse has been reported against him so far. The

petitioner has been granted parole on four occasions by this Court and the NCT of Delhi in the last three years, the last being from 12.10.2010 to 23.11.2010 which was granted and extended by this Court by 10 days in W.P. (Crl.) 1667/2010. The petitioner duly fulfilled all the conditions on which he was granted parole including regular presence at the Police Station as directed by this Court in W.P.(Crl.) 1667/2010. On each of the aforesaid occasions when the petitioner was granted parole, he duly surrendered before the Jail authorities within the stipulated time-frame and no adverse remark has ever been reported against the petitioner during the said period. The petitioner, in the month of September, 2010, filed an application for being released on furlough. However, his application for furlough has not been considered because of the bar stipulated in Clause 26.4.

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 6 of 42

39
W.P.(C) 1229/2012: (Dinesh Kumar) 6. The petitioner is a convict who is undergoing life imprisonment in

connection with case FIR No. 361/2001 under Section 363/364-A/120-B IPC, P.S. Kotwali, New Delhi. The petitioner was sentenced by the ld. ASJ, Tis Hazari, Delhi on 11/13.10.2004. The petitioner has been in jail for about 11 years and 7 months i.e. since 19.6.2001. Adding the period of remission earned by the petitioner for his good conduct, the time period of the petitioners incarceration is over 13 years. It is claimed that the petitioners conduct in jail has been unblemished and without any complaint whatsoever. The petitioner has been released on parole on three occasions and was granted interim bail for 3 months by this Court vide order dated 14.2.2006 in Crl. A. No. 181/2005. The petitioner duly surrendered after enjoying parole and interim bail that was granted by this Court. It is submitted that the petitioner did not misuse his liberty in any manner whatsoever. The petitioner, recently, attempted to file an application for being released on furlough. However, his application for furlough has not been considered because of the bar stipulated in Clause 26.4 in view of his conviction under Section 364A IPC.

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 7 of 42

40
W.P.(C)1230/2012: (Ibrahim)

7.

The petitioner is a convict who is undergoing life imprisonment having

being convicted for the offences punishable under Section 392 & 302 IPC in connection with case FIR No. 200/2002, P.S. Sultan Puri, Delhi. The

petitioner was sentenced by the Ld. ASJ, Rohini on 18.12.2007. Initially the case FIR against the petitioner was registered under Section 394 & 302 IPC. The relevant portion of the judgment of conviction of the petitioner is as follows:Since it cannot be said definitely if the accused caused injuries to the deceased at the time of committing the robbery or later on, therefore, it is held that the accused committed the offence punishable under Section 392 IPC, instead of 394 IPC. Both the charges have been established beyond shadow of doubt. Hence, accused Ibrahim is convicted for the offences punishable under Section 392 and 302 IPC. The petitioner has been languishing in jail for about 10 years since 3.3.2002. Adding the period of remission earned by the petitioner for his good conduct, the time period of the petitioners incarceration is well over 11 years. It is submitted that the petitioners conduct in jail has been

unblemished and without any complaint. The petitioner, attempted to obtain furlough. However, his application for furlough has not been considered
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 8 of 42

41
because of the bar stipulated in Clause 26.4 in view of his conviction under Section 392 IPC. W.P.(C) 1231/2012: (Luv Kush) 8. The petitioner is a convict who is undergoing rigorous imprisonment

for 10 years and fine in connection with case FIR no. 214/2006 under Section 376 IPC, P.S. Anand Vihar, Delhi. The petitioner was sentenced by the ld. ASJ, Karkardooma Courts, Delhi on 12.10.2007. The petitioner is in Jail for about 5 years and 8 months i.e. since 12.4.2006. Adding the period of

remission earned by the petitioner for his good conduct, the time period of the petitioners incarceration is about 7 years. The petitioner was released on parole by this Court for a period of 4 weeks in W.P.(Crl.) 994/2011. The petitioner duly surrendered after enjoying parole that was granted by this Court and the petitioner did not misuse his liberty in any manner whatsoever. The petitioners application for furlough has not been considered because of the bar stipulated in Clause 26.4 in view of his conviction under Section 376 IPC. The Submissions: 9. Mr. Vivek Sood, Advocate appeared for all these petitioners. His

submission was that Clause 26.4 does not only violate right to freedom and
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 9 of 42

42
liberty, it is unreasonable and discriminatory as well. He submitted that barring prisoners convicted for the offence stipulated in this Sub- Clause 26.4 was totally illogical and arbitrary when in more serious offences like murder or even multiple murder cases; furlough or parole could be granted. He also submitted that those persons who are given parole and/or furlough, it becomes a good ground for them to review of sentences by the Review Board which also would be denied in the event prisoner is denied furlough. He also

submitted that there was solitary objective behind grant of furlough namely the unification of the prisoner with his family members, friends and society and that purpose would be defeated in case the prisoner is denied furlough altogether and is to suffer long incarceration by serving entire sentence before he is in a position to come out of the prison. His submission was that good conduct in the prison should be the only relevant criteria. 10. Learned counsel for the State responded by pointing out that Rules in

question were framed at the directions of this Court given in Writ Petition (Crl.) 112/2009 and after framing of these Rules, the same were shown to the Court which would amply that the Court had imprimatur over these

guidelines and it was not permissible for the petitioners to challenge these guidelines now. It was further submitted that the Classification was made on
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 10 of 42

43
rational and intelligible differentia with a purpose behind it. It was argued that having regard to the serious nature of offences, these were rightly excluded from the grant of furlough. 11. We had requested Mr. Pawan Sharma, Standing Counsel (Crl.) for

Govt. of NCT of Delhi to assist us. He placed before us the judgment of Gujarat High Court in Juvan Singh Lakhubhai Jadeja Vs. State of Gujarat (1973) 14 GLR 104 and submitted that issue was squarely covered thereby. He also placed reliance on the judgment of Supreme Court in Avtar Singh Vs. State of Haryana AIR 2002 SC 1109 which drew distinction between parole and furlough and Supreme Court recognized in that judgment that furlough cannot be claimed by certain classes of prisoners. 12. We have considered the respective submission of the learned counsel

on either side. Effect of the orders in W.P.(W) 1121/2009:

\

13.

This Court had taken suo moto cognizance of the fact that the then

existing guidelines for parole/furlough had not been reviewed or revised for over 50 years. It was registered as W.P.(Crl.) 1121/2009. Pursuant thereto in consultation with Delhi Legal Services Authority, the Parole/Furlough
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 11 of 42

44
Guidelines-2010 were framed. These Guidelines were placed before the

Court on 21.1.2010 and taking note thereof the petition was disposed with the following order:A draft of guidelines for parole/furlough have been handed over in Court and is taken on record. The guidelines have been framed by the Delhi Government in consultation with the Member Secretary, Delhi Legal Services Authority. Learned Counsel for the Delhi Government states that the guidelines will be placed before the Lieutenant Governor for his approval and after taking the approval of the Lieutenant Governor will be published within six weeks. The petition is accordingly disposed of.. After the approval of the Lt. Governor, orders dated 17.2.2010 were passed approving these guidelines.

14.

No doubt, the guidelines have been revised by the Government in

consultation with the Member Secretary, DLSA and these were placed before the Court in the aforesaid writ petition as well. However, there was no

specific consideration to the validity of certain clauses of these guidelines which is the issue raised in the present petition. Therefore, learned counsel for the respondent may not be right in submitting that even the validity of these guidelines on merits was approved by this Court and, therefore, said guidelines cannot be challenged at all. We are of the opinion that this Court
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 12 of 42

45
would be entitled to examine the validity of portion of the guidelines relating to furlough as raised by the petitioners. Parole and Furlough: Meaning and purpose: 15. Guidelines relate to parole as well as furlough. There is a subtle

distinction between the two which has been explained by the Courts from time to time. A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Under the aforesaid guidelines, such a release of the prisoner is temporarily on some basic grounds. It is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. Such paroles are normally granted in certain situations some of which may be as follows:(i) A member of the prisoners family has died or is seriously ill or the prisoner himself is seriously ill; or
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 13 of 42

46
(ii) The marriage of the prisoner himself, his son, daughter, grandson, grand daughter, brother, sister, sisters son or daughter is to be celebrated; or (iii) The temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation o his land or his fathers undivided land actually in possession of the prisoner; or (iv) (v) It is desirable to do so for any other sufficient cause Parole can be granted only after a portion of sentence is already served (vi) If conditions of parole are not abided by the parolee he may be returned to serve his sentence in prison, such conditions may be such as those of committing a new offence (vii) Parole may also be granted on the basis of aspects related to health of convict himself. 16. In the Guidelines, 2010 two kinds of paroles are mentioned, namely,

custody parole and regular parole. The circumstances in which custody parole can be granted are stipulated in Clause 5 and the circumstances for grant of regular parole is stipulated in clause 9 which are as under:5. Custody Parole- Custody parole would be granted in emergent circumstances as follows: 5.1 Death of a family member; 5.2 Marriage of a family member; 5.3 Serious illness of a family member; or
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 14 of 42

47
5.4 Any other emergent circumstances.

xxx 9. Regular Parole: it would be open to the Government to consider applications for parole on other grounds such as:9.1 Serious illness of a family member; 9.2 Critical conditions in the family on account of accident or death of a family member; 9.3 marriage of any member of the family of the convict; 9.4 Deliver of a child by the wife of the convict if there is no other family member to take care of the spouse at home; 9.5 Serious damage to life or property of the family of the convict including damage caused by natural calamities. 9.6 To maintain family and social ties 9.7 To pursue the filing of a Special Leave petition before the Supreme Court of India against a judgment delivered by the High Court convicting or upholding the conviction, as the case may be. 17. Bail and parole have different connotation in law. Bail is granted to a

person who has been arrested in a non-bailable offence and has been convicted of an offence after trial. The effect of granting bail is to release the accused from interment custody though the Court would still retain constructive control over him through sureties. Parole, on the other hand, is the release of a person from the detention of custody even though substantial legal effect may be the same as bail. It is a temporary release from custody which does not suspend the sentence or period of detention.

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 15 of 42

48
18. Furlough, on the other hand, is a brief release from the prison. It is

conditional and is given in case of long term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct

remission. A convict literally speaking, must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for atleast some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such

prisoners for good of societies must receive due weightage while they are undergoing sentence of imprisonment. 19. The Supreme Court through various pronouncements has laid down the

difference between parole and furlough. Some of them are as follows:(i) (ii) Both parole and furlough are conditional release. Parole can be granted in case of short term imprisonment whereas in furlough it is granted in case of long term imprisonment.

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 16 of 42

49
(iii) Duration of parole extends to one month where as in the case of furlough; it extends to 14 days maximum. (iv) Parole is granted by Divisional Commissioner and furlough is granted by Deputy Inspector General Prison. (v) For parole specific reason is required where as furlough is meant for breaking the monotony of imprisonment. (vi) The term of imprisonment is not included in the computation of the term of parole, where as it is viceversa in furlough. (vii) Parole can be granted a number of times whereas there is limitation in the case of furlough. (viii) Since furlough is not granted for any particular reason it can be denied in the interest of the society. (See also State of Maharashtra Vs. Suresh Panduram, 2006, AIR SC 2471, State of Haryana and Ors. Vs. Mohinder Singh, 2000 (3) SCC 394)

20.

Further, in the land mark judgment of Charanjit Lal Vs. State of Delhi

28 (1985) DLT 92 it was held:(i) The four main objectives which a state intends to achieve by punishing an offender are-Deterrence, prevention, Retribution and Reformation. Life convicts release from jail off and on for short periods has to be considered and opportunities have to be afforded to them not only to solve their personal and family problems but also to maintain their links with society. They must breathe fresh air for at least sometime provided, of course, they maintain good conduct consistently during incarceration and they show a tendency to reform them and become good citizens.

(ii)

(iii)

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 17 of 42

50
(iv) Redemption and rehabilitation of such prisoners for the good of the society must receive due weight while they are undergoing sentence of imprisonment.

Relevant Considerations governing grant of Furlough:

21.

What follows from the above is that the four main objects which

punishment of an offender by the state is intended to achieve are deterrence, prevention, retribution and reformation. There has been substantial diversion from the previously existing popular concept of retribution. Of late the focus has shifted upon the reformation. The earlier criminal law concept of an eye for eye and a tooth for tooth has been replaced by a more humane concept which emphasizes upon the re-allocation of an accused into the society. The concept of parole and furlough are in fact a step towards the accomplishment of this very purpose. 22. The provisions of parole and furlough provide for a humanistic

approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support,
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 18 of 42

51
without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. offenders for success. 23. While on the one hand, the aforesaid reformative theory of sentencing Furloughs can help prepare

is to be kept in mind, on the other hand, the interest of the society is also a necessary concomitant. As already mentioned above, there are four main objects of punishment which includes even deterrence and prevention as well. The other side of the coin is the experience that great number of crimes are committed by offenders who have been put back in the street after conviction. Therefore, while exercising the discretion in granting furlough such aspects are to be kept in mind namely whether the convict is such a person who has tendency to commit such a crime or he is showing tendency to reform himself to become good citizen. 24. Not all people in prison are appropriate for grant of furlough.

Obviously, society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 19 of 42

52
demonstrate a commitment to reconcile with society and whose behaviour shows that aspire to live as law-abiding citizens. Thus, furlough program should be used as a tool to shape such adjustments. The Issue: 25. In order to maintain the balance between the aforesaid two competing

and conflicting interest and in order to harmonize the same, what is the yardstick to be adopted, is the poser. Whether the commission of a serious crime by itself be treated as an embargo to the grant of furlough, as is done vide Clause 26.4 of the Guidelines, 2010 ? Or it should be the propensity of such a convict to commit a crime again which has to be judged from some other standards like the good conduct of the prisoner in the prison? Relevant case law on the issue revisited: 26. Before we answer these questions, it would be necessary to place on

record that provisions like Clause 26.4 on furlough is framed by different States. We may also record that such provisions have been noticed by the Courts earlier. In Avtar Singh (supra) the provisions of Haryana Good

Conduct Prisoners (Temporarily Release) Act, 1988 were the subject matter of discussion. Section 4 thereof provides for temporary release of prisoners
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 20 of 42

53
on furlough and excludes the categories of the habitual offenders as defined in Punjab Habitual Offenders (Control and Reform) Act, 1952 as well as those convicted of dacoity or such other offences as the State Government may by notification specifies. Comparing this provision with Section 3 of the said Act which provides for parole, the Court observed that conditions for releasing a prisoner on furlough were more rigorous than that of parole, which is clear from the following passage in the said judgment:As noted above, under this section any prisoner irrespective of his period of sentence of detention can be released on parole to meet such problem, whereas the condition for releasing a prisoner on furlough under Section 4 is rigorous and such release on furlough cannot be claimed by certain classes of prisoners as mentioned in the section. On close look at both the sections it would appear that these sections operate on different fields. Section 3 has been enacted to meet certain situation of the prisoner but Section 4 has been enacted as a reformative measures as a prisoner has to show good conduct while in incarceration. In our consideration opinion this classification is based on rational criteria and cannot be said to be discriminatory in nature. We, therefore, find no force in the first contention of the learned counsel for the appellant. 27. We may record that these observations were made in the context of was

argument of the appellant that Section 3(3) of the said Act

unconstitutional as the period of parole was not counted towards the sentence whereas in the case of furlough the benefit of that period was given. Thus,
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 21 of 42

54
the Court was not seized of and discussed the issue which has arisen in the present petition. However, this very issue is directly dealt with by the Gujarat High Court in Juvan Singh Lakhubhai Jadeja (supra). The

argument in that case was identical namely exclusion of certain classes of convicts of particular offences was discriminatory. upholding the validity of such a provision remarked:But in introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that while meting out humane treatment to the convicts care is taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the time-being under the furlough leave granted to him by way of a measure of penal reform. 28. While dealing with the cases of habitual prisoners as exclusionary The Court while

category the court justified their exclusion observing:W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 22 of 42

55
This appears to be the object underlying Rule 4 which enjoins that prisoners of the specified categories shall not be enlarged on furlough. And that is why Rule 4(1) provides that "habitual prisoners" should not be considered for furlough leave. If committing the offence has become a habit, a prisoner is less likely to respond to the corrective treatment aimed at his reform while he is undergoing the sentence to the extent that he can safely (safely for the society) be set at large before the expiration of his term of imprisonment. If released, he is more prone to the temptation to commit a crime because in his case the crime is committed not merely under compulsion of circumstances or in a moment of passion but on account of his having become habituated to that way of life. Until there is evidence that he has been able to break the chains of habit and master his habitual impulses, it would not be safe from the point of view of the society to throw him in the midst of it thereby exposing the society to further crimes by him. 29. In that case those convict of offence under the Bombay Prohibition Act

were also made ineligible for grant of furlough under Rule 4 (3) and this exclusion was justified in the following manner:The same idea appears to run through most of the clauses of Rule 4. For instance, Rule 4(3) concerns persons convicted of offences under the Bombay Prohibition Act, 1949. Apparently persons who indulge in offences under the Prohibition Act either by consuming liquor or by trading in liquor become slaves of the habit or way of life and find it difficult to free themselves from the bondage of habit. That appears to be the reason why it is provided that they should not be considered for release on furlough because a break from the prison life will expose them to the same temptation and the purpose of keeping them

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 23 of 42

56
away from the habit for sufficient time to enable them loosen the hold of the habit would not be served. 30. Rule 4 (5) of the Prisons (Bombay Furlough and Parole) Rules, 1959,

rendered such convicts ineligible for grant of furlough who show a tendency towards crime. manner: Similarly Clause (5) of Rule 4 provides that those who show a tendency towards crime should not be so released. The idea would appear to be that in view of their manifest tendency it would not be advisable to expose them to the temptation and expose the society to the risk. This inclusion was also found justified in the following

31.

Insofar as those convicts whose conduct had not been found to be

satisfactory and who had in the past escaped or attempted to escape from lawful custody or who have defaulted in any way in surrendering themselves were as rightly excluded from the benefit of grant of furlough. 32. To this extent namely exclusion of the aforesaid categories may not

pose a problem. Even in the Guidelines, 2010 same kind of provisions are made in Clause 26 which inter alia lay down that in order to obtain the furlough, the petitioner should not be a habitual offender; the release of the prisoner should not be considered dangerous or deleterious to the interest of

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 24 of 42

57
national security or involvement in a pending investigation; in a case

involving serious crime; he should not be a person whose presence is considered highly dangerous or prejudicial to the public peace and tranquility by the District Magistrate by his home district etc. 33. Coming to the exclusion of those convicted of robbery and dacoity

(which is one of the offences made in Clause 26.4 of the Guidelines, 2010 as well) the Court held that even this was not discriminatory. A detailed discussion in this behalf is contained in para 9 of the said judgment. 9.Sections 392 to 402 occur in Chapter XVII of the Indian Penal Code and relate to offences of robbery and dacoity. The question is : is there any rational basis for selecting this class of offences for being included in the list of the offences for which convicts should not be enlarged on furlough ? Now, in robbery an element of violence is present along with theft or extortion. Violence is either actually used or attempted to be used either for carrying away of the property or for making the victim part with the property. And when five or more persons conjointly commit or attempt to commit robbery, the offence falls within the description of dacoity. It is obvious that in dacoity five or more persons come together with the avowed object of obtaining property unlawfully by resort to violent means. When so many persons enter upon a life of crime and form a group which is likely to become an organized gang, it is clear that there is great danger in letting them loose. In order to maintain themselves they take to robbery in an organized fashion and it tends to become a habit or a way of life from which it is difficult to make a break.
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 25 of 42

58
If one who has been found guilty of such an offence is released on furlough, there is no guarantee that he will not indulge in similar activity as soon as he is let large. None of the twin objects of punishment of imprisonment would then be served. Neither would he be reformed nor would the society remain immunized from his criminal activity for the specified period. It would be dangerous to the society to release him on furlough merely out of considerations of penal reform and humane treatment. As observed earlier, consideration of sympathy for him cannot be permitted to overshadow the consideration regarding security of the society. Similarly with regard to the lesser offence of robbery, it would be extremely hazardous to let the prisoner loose before the expiry of the term of imprisonment. It would be hazardous to do so because when one abandons honest labour for the career of theft or intimidation coupled with violence (which brings easy money though at some risk) it tends to become a way of life and the temptation is too great to resist when the prisoner is at large. The offences of robbery and dacoity, therefore, fall within a class by themselves. The classification is based on the danger inherent in releasing on furlough those who are proved to have unhesitatingly committed crimes against person as well as property and such crimes by their very nature are habit forming and repetitive. It is, therefore, not possible to say that the classification is irrelevant or that it has no nexus with the objective sought to be achieved. It will be recalled that the object is two-fold (1) to enable the convict to break the shackles of his habit and (2) to immunize the society atleast for a specified period. It was, however, argued by counsel that if a more serious crime like murder was not included in the list, there was no rational basis for including the offences relating to robbery and dacoity within the fold. Here again, the argument ignores the fact that by and large an offence of murder is committed by a person under some real or imagined provocation or in a moment of passion
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 26 of 42

59
and the perpetrator of the crime usually has a motive or animus against a particular individual or individuals and not against the society at large. There is, therefore, less danger of his committing a similar crime when he is on leave on furlough. Robbery and dacoity are offences which are directed against the entire society at large and the entire society is exposed to the danger emanating from them. In case of murder only that person against whom the perpetrator has a motive or animus alone is exposed to danger from him and not others. So far as robbery and dacoity are concerned, any victim is a good victim and the entire society is exposed to the risk. It is, therefore, clear that the offences of robbery and dacoity fall in a different category. Whether or not the offence is more serious is not the relevant consideration for withholding furlough. The relevant consideration is whether his release will hamper his reform or expose the society to the vary danger to shield from which the criminal is imprisoned. Therefore, the fact that murder may be by and large considered to be a more serious crime is not a circumstance which in any way impairs the reasoning underlying the selection of the offences falling under the specified class viz. the offences relating to robbery and dacoity. Again, the mere fact that some other offences also deserve to be included in the list of offences in respect of which furlough should not be granted (even if the argument is valid) is not a good ground for not including the offences of robbery and dacoity. By experimentation, and by gaining experience the list may be enlarged or modified from time to time. A classification which is otherwise rational and purposeful and bears a nexus with the underlying object of the legislation cannot be branded as obnoxious merely because another class also ought to be brought within the sweep of the legislation. It is not true to say that all evils must be remedied by the same legislation in order to be immune from the charge of discrimination. It is not a
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 27 of 42

60
valid argument that the Legislature can legislate in respect of all evils or none. Legislation can be implemented by stages. The mere circumstance, that other class of offences may also be included within the list will not render the class which is actually included devoid of rational basis. Under the circumstances, it is not possible to uphold the contention that Rule 4(2) is discriminatory in character and is violative of Article 14 of the Constitution of India. We are of the opinion that the classification has a rational basis and has a distinct nexus with the underlying object of the legislation and that it does not introduce any element of hostile discrimination. 34. It becomes clear from the aforesaid that the Court treated the offences

of robbery and dacoity in a different class altogether and this classification was found justified i.e. rational and purposeful which bears a nexus with the underlying object sought to be achieved. The reason given by the Court was that by very nature those who commit dacoity with objective of obtaining property unlawfully and resorting to violent means, in an organized fashion, it tends to become a habit or a way of life from which it is difficult to take a break. Therefore, it would be dangerous for the society to release such

prisoners on furlough merely out of considerations of penal reform and human treatment. Even in respect of the lesser offence of robbery the Court was of the opinion that these are the prisoners who objected to honest labour

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 28 of 42

61
for the career of theft coupled with violence which brings easy money though at some risk and that tends to become a way of life. 35. The moot question is as to whether there can be a presumption that for

all such persons who have committed the offence of robbery and dacoity and convicted thereof are to be treated as hardened criminals for whom it has become a habit or way of life and they would necessarily tend to commit the same crime again and again. 36. Interestingly, while contrasting the cases of robbery and dacoity, with

the offence of murder which is more heinous crime, the Court observed that there was less danger of a convict committing similar crime of murder when he is on leave or on furlough as the offence of murder is committed by a person under some real or imagined provocation or in a moment of passion and the perpetrator of the crime usually has a motive or animus against a particular individual (s) and not against the society at large as in the case of dacoity and robbery. More interestingly, the justification for inclusion of

convicts for offence of murder for furlough was given by observing that: Whether or not the offence is more serious is not the relevant consideration for withholding furlough. The relevant consideration is whether his release will hamper his reform or expose the society to the vary danger to
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 29 of 42

62
shield from which the criminal is imprisoned. Therefore, the fact that murder may be by and large considered to be a more serious crime is not a circumstance which in any way impairs the reasoning underlying the selection of the offences falling under the specified class viz. the offences relating to robbery and dacoity.

Would this reasoning not apply in the case of dacoity and robbery as well?.

It would be interest to note that Full Bench of Gujarat High Court itself in a later case titled Bhikhabhai Devshi Vs. State of Gujarat and Ors. AIR 1987 Guj 136 discussed the provisions of furlough though in that matter Rule 4 (10) was the subject matter of the discussion, which stipulated that those prisoners who have at any time escaped or attempted to escape from lawful custody or have defaulted in any way in surrendering themselves at the appropriate time after release on parole or furlough would not be granted furlough. The Full Bench held that such a provision was not inconsistent with Section 48A of the Prisons Act, 1894. The Court held that as far as the first part of Rule 4(1) is concerned, in respect of prisoners who have escaped or attempted to escape, such prisoners, a class by themselves, cannot be trusted for being released on furlough and, therefore, in such cases, the prison

authority would be justified in not considering their request for furlough.

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 30 of 42

63
However, in cases of late surrender, where there is no element of escape, but merely there is a delay in surrendering, the question will have to be examined on the facts and circumstances and merits of each case. A given case of a prisoner defaulting in timely surrender, who is wanted by the jail authorities and who is not available at the place where ordinarily he should be and who is apprehended by the police or who surrenders because of the chase by the authority, may fall under the first part where he cannot be trusted to be released on furlough again. But such cases are at the other extreme. The Court also opined that other cases of late surrender may be of voluntary surrenders and the lateness may not be unduly long and not without sufficient cause or reason. In such cases sufficiency of such a cause related to time will certainly have to be considered by the authority. The Court found this provision to be violative of Section 48A of the aforesaid Prisons Act, 1894. 37. This judgment of Full Bench was relied upon by the another Division

Bench of Gujarat high Court in Govindbhai Mansing Dabhi Vs. State of Gujarat 2005 (3) GLH 169 . In this case the Court held that where a person had suffered incarceration for long time irrespective of the nature of offence for which he was sentenced, he should be granted furlough. The Court, while taking this view, relied upon the judgment of a Division Bench of Bombay
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 31 of 42

64
High Court in Sharad Keshav Mehta Vs. State of Mahrasthra 1989 Crl. LJ 681 which was to the effect that right to be released on furlough is a

substantial and legal right of the prisoner and he cannot be denied the same if it is permissible under the law. The Court Furlough Rules, in that State held as under:"It is not open to the Home Department of the State Government to prescribe rules giving facility of release of the prisoner on furlough by one hand and then providing that the prisoner has no legal right to be released on furlough. In our judgment, R. 17 cannot deprive the prisoner of the substantial right to be released on furlough provided the requirements of the rule are complied with. The submission advanced on behalf of the State Government overlooks the distinction between the right to be released on parole and the right to be released on furlough. Parole is granted for certain emergency and release on parole is a discretionary right while release on furlough is a substantial right and accrues to a prisoner on compliance with certain requirements. The idea of granting furlough to a prisoner is that the prisoner should have an opportunity to come out and mix with the society and the prisoner should not be continuously kept in jail for a considerably long period. The interaction with the society helps the prisoner in realising the folly which he has committed and the liberty which he is deprived of. In modern times the effort is to improve the prisoner and the punishment is to be considered as an action for reformation of an individual. It is futile to suggest that a prisoner should be kept behind the bars continuously and should not be permitted to come out on furlough unless the authorities think wise. In our judgment, the State Government has framed rules in exercise of the powers conferred by Cl.
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 32 of 42

considering the Scheme of

65
(5) and (28) of Section 59 of the Prisons Act, 1894 and on framing of such rules, R. 17 cannot deprive the prisoner of the right to be released on furlough. In spite of the enactment of R. 17, we hold that the right to be released on furlough is a substantial and legal right conferred on the prisoner."

38.

There can be no cavil in saying that a society that believes in the worth

of the individuals can have the quality of its belief judged, at least in part, by the quality of its prisons and services and recourses made available to the prisoners. Being in a civilized society organized with law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. If a person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life which constitutes human dignity. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment.

39.

In Sunil Batra versus Delhi Administration, (1980) 3 SCC 488,

Justice D.A.Desai, speaking for himself, the Honble Chief Justice of India and two Honble Judges observed that a convict is in prison under the order and direction of the Court and the Court has, therefore, to strike a just balance between the dehumanizing prison atmosphere and the preservation of interval

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 33 of 42

66
order and discipline, the maintenance of institutional security against escape, and rehabilitation of the prisoners. Article 21 guarantees protection of life and personal liberty. Though couched in the negative it confers the fundamental right to life and personal liberty.

40.

In Maneka Gandhi versus Union of India, AIR 1978 SC 579, Justice

Bhagwati observed that if a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19, which may be applicable in a given situation, exhyopthesis it must also be liable to be tested with reference to Article 14. 41. Justice V.R. Krishna Iyer in Charles Sobraj v. Supdt., Central Jail,

AIR 1978 SC 1514, observed that imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to recognize the full panoply of part III enjoyed by free citizens. Further, observed that the axiom of prison justice is the Courts continuing duty and authority to ensure that the judicial warrant which deprives a person of his life or liberty is not exceeded, subverted or stultified. It is a sort of solemn covenant running with the power to sentence. Referring to the decision of

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 34 of 42

67
Supreme Court in Rustom Cowvasjee Cooper v. Union of India, AIR 1970 SC 1318, and Maneka Gandhi (Supra), it was observed that Prisoners retain all rights enjoyed by free litigants except those lost necessary as an incident of confinement, the rights enjoyed by prisoners under Article 14, 19 and 21 though limited, are not static and will rise to human heights when challenging situation arise. 42. The Supreme Court in Sunil Batra versus Delhi Administration

(Supra) observed Prisons are built with stones of law, and sort behooves the Court to insist that, in the eye of law, prisoners are persons, not animals and punish the deviant guardians of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by Jail officials dressed in a little, brief although when part III is invoked by a convict. For when a prisoner is traumatized, the constitution suffers a shock. The Supreme Court further held that the Court has power and responsibility to intervene and protect the prisoner against may how, crude behaviour. Our Analysis: 43. The most relevant aspect which needs to be focused is as to whether

offences specified n Clause 26.4 are to be treated per se ineligible for the
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 35 of 42

68
grant of furlough. As mentioned above, this exclusion presumes that the convict would have a tendency to commit such an offence again. According to us, generalizing this underlying presumption may not be valid and it should be examined on case to case basis. By no means it is suggested that convicts of the offences specified in Clause 26.4 are to be granted furlough. If this category is not excluded, at the most, they become eligible for consideration. Still such persons will have to satisfy the conditions of

furlough mentioned in other provisions of Clause 26. After all the competent authority will still have discretion to deny furlough in particular cases. It

would still be seen as to whether the prisoner depicted good conduct and behaviour in the prison and continues to maintain good conduct. The

furlough can also be denied if he is a habitual offender or is involved in a pending investigation in a case involving serious crime. As per Clause 26.4 or 26.7 furlough can be denied even to that convict whose presence is considered highly dangerous or prejudicial to the public peace and tranquility by the District Magistrate by his home district. Thus, there are sufficient safeguards provided in clause 26, on an application of which a person can be denied furlough even if he is convicted of lesser offences. While examining a particular case, the competent authority can definitely consider the matter as

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 36 of 42

69
to whether a particular convict is on the path of reformation or he still has the tendency to commit the crime if he is released on furlough. Reports from the Counsellors, psychiatrists and other concerned officials of Jail who are closely monitoring him can always be obtained for this purpose. On the other hand what Clause 26.4 does is to make convicts of such offences per se ineligible for furlough on the basis of farfetched and illogical presumption that they have become habitual offenders and are incapable of being reformed.. There have been numerous instances of reformation of those prisoners convicted of the offences of dacoity and robbery. 44. Furthermore, the competent authority while examining such cases can

be well advised to have stricter standards in mind while judging their cases on the parameters of good conduct, habitual offender or while judging

whether he could be considered highly dangerous or prejudicial to the public peace and tranquility etc. On the other hand, if such a convict is rendered totally ineligible for furlough, it would negate the very purpose of grant of furlough viz affording him opportunity to maintain links with society; to solve personal and family problems; breath fresh air for at least some time; and opportunity to become good citizen.

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 37 of 42

70
45. The aforesaid reasoning of ours applies with much force where

conviction is for offence of rape as in such a case by no means there can be a presumption that in all circumstance, the convict would repeat this crime. The prediction of criminal behaviour is ubiquitous. However, it is not very difficult to comprehend. If the extent of criminal behaviour is predicted, then it can be prevented as well. Mainly there are two methods for the prediction of criminal behaviour: (i) (ii) 46. Experience tables (statistical method); and Clinical or intuitive method.

It is also to be kept in mind that by the time an application for furlough

is moved by a prisoner, he would have spent some time in the Jail. During this period, the various reformatory methods must have been applied. We can take judicial note of this fact, having regard such reformation facilities available in Tihar Jail. One would know by this time as to whether there is a habit of relapsing into crime inspite of having administered correctional treatment. This habit known as recidivism reflects the fact that the

correctional therapy has not brought in the mind of the criminal. It also shows that criminal is a hard core who is beyond correctional therapy. If the

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 38 of 42

71
correctional therapy has not made in itself, in a particular case, such a case can be rejected on the aforesaid ground i.e. on its merits. 47. We are not oblivious of the fact that there may be hard core criminals

who by reason of their crime and the methods of dealing with the crime, form associations, loyalties and attitudes which tend to persist. There may be even peer pressure when such convicts are out to commit those crimes again. There may be pressure of ostracised from delinquent groups which may lead them to commit the crime again. Persistence in criminal behaviour may also be due to personality traits, most frequently due to pathological traits of personality, such as mental defectiveness, emotional instability, mental conflicts, ecocentrism and psychosis. In regard to relapse or recidivism, Frank Exner a noted criminologist and sociologist, points out that the chances of repeating increase with the number of previous arrests and the interval between the last and the next offence becomes shorted as the number of previous crimes progresses(Frank Exner. Kriminologie pp.115-120). The

purpose of the criminological study is the prognosis of the improvable occasional offenders and that of the irredeemable habitual offender and hardcore criminal. To differentiate the recidivists from non-recidivists and

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 39 of 42

72
dangerous and hard-core criminals from occasional criminals had been enumerated by Exner in the following flow-sheet:1. Hereditary weaknesses in the family life. 2. Increasing tempo of criminality. 3. Bad conditions in the parental home. 4. Bad school progress (especially in deportment and industriousness) 5. Failure to complete studies once begun. 6. Irregular work(work shyness). 7. Onset of criminality before 18 years of age 8. More than four previous sentences. 9. Quick relapse into crime. 10. Interlocal criminality (mobility). 11.Psychopathic personality (diagnosis of institutional doctor). 12.Alcoholism 13.Release from institution before 36 years of age 14.Bad conduct in the institution. 15.Bad social and family relations during period of release. At the same time, as criminality is the expression of the symptom of certain disorder in the offenders, they can be easily reformed if they are rightly diagnosed and correct treatment is administered to them.
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 40 of 42

73
48. These are, thus, the parameters which can be looked into while denying

the furlough in a particular case and particularly those convicted of the offences mentioned in Clause 26.4. We may record that the authorities may be extra cautious in granting a furlough to an inmate convicted of a serious crime against the person and/or whose presence in the community could attract undue public attention, create unusual concern, or depreciate the seriousness of the offense. If the authority approves a furlough for such an

inmate, it must place a statement of the reasons for this action. However, their exclusion per se making them ineligible at the outset even from consideration to obtain furlough becomes discriminatory and arbitrary and it cannot have any rational nexus. We find ourselves in difficulty to agree with the reasoning given by the Gujarat High Court in Juvan Singh Lakhubhai Jadeja (supra). 49. To sum up, we hold that the provision contained in Clause 26.4 of

Guidelines, 2010 in the present form does not stand judicial scrutiny which makes persons ineligible for furlough merely on the basis of the nature of crime committed by them. It would amount to snatching their right to at least consider their cases for grant of furlough. We thus, strike down this provision as unconstitutional and infringing the Article 14 as well as Article
W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010
Page 41 of 42

74
21 of the Constitution. At the same time, having regard to the nature of offences specified therein, we are of the view that there may be strict and stringent conditions attached for consideration of cases of such convicts for grant of furlough some of which have been outlined by us in the preceding paragraphs. The appropriate authority shall, accordingly, make suitable

amendments while redrafting Clause 26.4 of the Guidelines, 2010. This exercise shall be completed within a period of two months from today. Based on the amended provision, the cases of the petitioners shall be considered for grant of furlough. 50. These writ petitions stand disposed of in the aforesaid terms.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE MAY 1, 2012 skb

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010

Page 42 of 42

ANNEXURE P-5

75

76

77

78

79

80

81

82

83

84

85

86