KANTILAL NANDLAL JAISWAL (IN JAIL) vs. DIVISIONAL COMMISSIONER NAGPUR DIVISION NAGPUR AND ANOTHER

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 1046 of 2018
…

Kantilal Nandlal Jaiswal,
Aged about 68 years,
R/o Rani Amravati,
Police Station Babhulgaon,
District Yavatmal.
(C/8135, Central Prison, Nagpur.) .. PETITIONER

.. Versus ..
1. Divisional Commissioner,
Nagpur Division, Nagpur.
2. Superintendent of Jail,
Central Prison,
Nagpur District, Nagpur. .. RESPONDENTS

Mr. Sunil V. Manohar, Senior Advocate with Mr. Adwait S.
Manohar and Ms. Sonali Khobragade, Advocates for Petitioner.
Mr. S.Y. Deopujari, Public Prosecutor with Mr. M.J. Khan,
Additional Public Prosecutor for Respondents.
….

CORAM : P.N. Deshmukh,
Manish Pitale &
Smt. Pushpa V. Ganediwala, JJ.
RESERVED ON : August 07, 2019
PRONOUNCED ON : September 13, 2019.
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JUDGMENT (per Manish Pitale, J.)
By order dated 14.03.2019, a Division Bench of this
Court framed two questions pertaining to the nature of right of
grant of parole to a convicted accused and as to whether
proviso introduced to Rule 19(2) of the Prisons (Bombay
Furlough and Parole) Rules, 1959, violates Articles 14 and 21 of
the Constitution of India. The reference was occasioned
because the said Division Bench of this Court found that
validity of such a proviso upheld by an earlier judgment of a
Division Bench of this Court was required to be reconsidered, in
the light of specific contentions raised on behalf of the
petitioner in the context of Articles 14 and 21 of the
Constitution of India and also because certain new and
distinguishing circumstances had arisen after the said earlier
judgment of the Division Bench of this Court in the case of
Gajanan Babulal Bathulwar .vs. State of Maharashtra
and others reported in 2014(2) Bom. CR (Cri) 544 .
2. The specific questions referred to the larger Bench
read as follows:-
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(i) Whether parole is a right or a concession
offered by the State or a mere administrative
decision of the State dictated by its
administrative policy or a special right of a
prisoner in special circumstances or
something else?
(ii) Whether proviso to Rule 19(2) introduced
th
in terms of notification dated 16 April, 2019
is violative of Article 14 and Article 21 of the
Constitution of India and if yes, what
treatment must it be given ?
3. The aforesaid rules pertaining to furlough and parole
were framed under Section 59(5) of the Prisons Act, 1894 as
applicable to the State of Maharashtra. The aforesaid section
59(5) of the Prisons Act, 1894 reads as follows:-
“59. Power to make rules :-
(5) for the award of marks, the suspension,
or remission and consent shortening of
sentences, and the grant of release on parole
or furlough and determining the conditions on
which and the authority by which the
sentences may be suspended or remitted and
the prisoners may be released on parole or
furlough.- Bombay Act 23 of 1959, S.3 (w.e.f.
1-6-1959).”
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4. The said Rules pertaining to furlough and parole
framed in the year 1959 (hereinafter referred to as “the Act
and Rules of 1959”) and a perusal of the manner in which the
said Rules were amended from time to time shows that the
proviso, validity of which has been called into question, was
first inserted in the said Rules on 28.11.1989. Thereafter, it
stood deleted on 07.02.2007. It was again added on
23.02.2012. It is at this stage that validity of the said proviso
was challenged before this Court, but its validity was upheld in
the aforesaid judgment by a Division Bench of this Court in the
case of Gajanan Babulal Bathulwar .vs. State of
Maharashtra and others (supra). Thereafter, on 26.08.2016,
the said proviso again stood deleted. Lastly, on 16.04.2018,
the said proviso was again added to Rule 19(2) of the Rules of
1959. It is still in operation and the same has been challenged
in the present writ petition. It is relevant that the last
amendment dated 16.04.2018, whereby the proviso stood
reinserted in the aforesaid Rules, Rule 1(A) was also inserted in
the Rules of 1959, enumerating the objectives for furlough and
parole rules. There were other amendments also carried out in
the Rules of 1959 by the said amendment on 16.04.2018,
reference to which shall be made at appropriate place in this
judgment.
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5. In order to appreciate the nature of challenge raised
in the present writ petition, it would be appropriate to quote at
this stage Rules 1(A) and 19 of the Rules of 1959. The said
Rules read as follows:-
“ 1(A). Objectives :-
Furlough and Parole leaves to inmates are
progressive measures of correctional services.
The objectives of releasing a prisoner on leave
are:-
(a) To enable the inmate to maintain
continuity with his family life and deal with
family matters,
(b) To save him from evil effects of
continuous prison life,
(c) To enable him to maintain and develop
his self-confidence,
(d) To enable him to develop constructive
hope and active interest in life.”
“19. When a prisoner may be released
on emergency parole :-
(1) Emergency Parole -
(A) All convicted prisoners except foreigner
and death sentenced prisoners may be eligible
for emergency parole for 14 days for death of
parental grandfather or grandmother /father /
mother /spouse /son/daughter/brother/sister
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and marriage of son/daughter/ brother /sister,
provided that no extension can be granted to
emergency parole.
(B) Emergency Parole may be granted by
the Superintendent of Prison for the reason of
death of parental grandfather or
grandmother/ father /mother/ spouse/ son/
daughter/ brother/ sister and by concerned Dy.
I.G. for the reason of marriage of son /
daughter/ brother/ sister and the Authority
approving emergency Parole shall decide
whether to grant parole under police escort or
with a condition to report daily to the local
police station depending upon the crime
committed by the prisoner and his conduct
during his stay. The expenses of police escort
will be borne by the prisoner himself prior to
his release on parole.
(2) Regular Parole –
All the prisoners eligible for furlough shall be
eligible for regular parole for following
reasons:-
a. Serious illness of father/ mother/ spouse/
son/ daughter.
b. Delivery of wife ( except high security risk
prisoners).
c. In case of natural calamities such as house
collapse, flood, fire, earthquake, etc.
Provided that, a prisoner shall not be released
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on emergency or regular parole for the period
of one year after the expiry of his last
emergency or regular parole except in case of
death of his nearest relatives mentioned
above.
In case of Regular Parole, eligibility and limits
of parole days will be as follow:-
(A) When average sentence of prisoner is
not exceeding 5 years,
(i) Prisoner may be considered for first
release on regular parole after completion of
one year of imprisonment counted from the
date of admission to prison under convicted
crime, provided six months have been passed
from his last furlough.
(ii) Prisoner shall be eligible for subsequent
release on regular parole after completion of
six months of actual imprisonment to be
counted from his last return either from
furlough or regular parole.
(iii) Prisoner shall be eligible for maximum
of 45 days of parole in a year which can be
extended up to 60 days once in three years
only under exceptional circumstances.
(B) When average sentence of prisoner
exceeds 5 years but not more than 14 years,
(i) Prisoner may be considered for
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first release on regular parole after completion
of two years of imprisonment counted from
the date of admission to prison under
convicted crime provided six months have
been passed from his last furlough.
(ii) Prisoner shall be eligible for next
release on regular parole after completion of
one year of actual imprisonment and
subsequent releases then onwards after
completion of six months of actual
imprisonment to be counted from his last
return every time either from furlough or
regular parole.
(iii) Prisoner shall be eligible for maximum
of 45 days of parole in a year which can be
extended upto 60 days once in three years
only under exceptional circumstances.
(C) When prisoner is sentenced to life or
whose average sentence exceeds 14 years,
(i) Prisoner may be considered for first
release on regular parole after completion of
three years of imprisonment counted from
the date of admission to prison under
convicted crime provided six months have
been passed from his last furlough.
(ii) Prisoner shall be eligible for next
release on regular parole after completion of
one year of actual imprisonment and
subsequent releases then onwards after
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completion of six months of actual
imprisonment to be counted from his last
return every time either from furlough or
regular parole.
(iii) Prisoner shall be eligible for
maximum of 45 days of parole in a year which
can be extended up to 60 days once in three
years only under exceptional circumstances.”
6. The brief facts relevant for appreciating the challenge
raised by the petitioner in the present case are that the
petitioner is undergoing sentence of life imprisonment for
offences punishable under Sections 302, 148, 149 and 449 of
the Indian Penal Code. At the time when the writ petition was
filed in 2018, the petitioner had undergone about 10 years of
sentence. There is no dispute about the fact that the appeals
filed by the petitioner against his conviction and sentence were
dismissed and, therefore, the order convicting and sentencing
him has attained finality. It is the case of the petitioner that his
application for grant of parole was rejected by the competent
authority, only for the reason that period of one year had not
elapsed from the last occasion on which he was granted parole.
It is in this context that a challenge has been raised to the
aforesaid proviso to Rule 19(2) of the Rules of 1959,
contending that limiting grant of regular parole to a convict
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within one year of expiry of his last emergency or regular
parole to case of death of his nearest relatives, was wholly
arbitrary and it ran counter to the very objectives specifically
inserted by Rule 1(A) of the Rules of 1959 by amendment of
the Rules on 16.04.2018. It was submitted that such an
arbitrary condition not only violates Article 14 but also Article
21 of the Constitution of India and that, therefore, it was liable
to be quashed as being ultra vires the Constitution of India.
7. Upon notice being issued in the writ petition, the
respondents justified the order rejecting grant of parole to the
petitioner by relying upon proviso to Rule 19(2) of the Rules of
1959 and the aforesaid judgment of Division Bench of this
Court in the case of Gajanan Babulal Bathulwar .vs. State
of Maharashtra and others (supra), wherein constitutional
validity of identical proviso had been upheld by this Court. It
was claimed that when validity of an identical proviso found in
the Rules, as introduced in the year 2012, had been upheld,
there was no occasion to entertain a similar challenge at the
behest of the petitioner.
8. But, in the referral order, the Division Bench of this
Court took note of the change in circumstances, as also the
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specific challenge raised on behalf of the petitioner in this writ
petition, in the context of Articles 14 and 21 of the
Constitution of India and thereupon it was observed as follows:-
“25. Following such line of reasoning, it
was held in Gajanan that the proviso
introduced to Rule 19 by notification dated
23.2.2012 could not be stated to be resulting
in breach of the provisions of Article 21 of the
Constitution of India and, therefore, the
challenge was rejected. But, now the
challenge made has a new context provided
by avowed objectives, new circumstances
created by change in stand of the
Government twice and new perspective
provided by a question raised over unequal
treatment and ignorance of right to lead life
with dignity falling within the purview of
Articles 14 and 21. All these factors were not
present when validity of 2012 rule was upheld
in Gajanan. These are the distinguishing
circumstances and grounds which in our
opinion would require reconsideration of
Gajanan and these are the very factors also
which have made us arrive at an opinion
which we have expressed in the previous
paragraphs. So the judicial discipline would
make us believe that it is necessary that the
issue involved herein deserves to be referred
to a larger Bench for its resolution finally.
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26. Of course, in the case of Satish
Shankarrao Shinde (supra) another Division
Bench of this Court at Aurangabad has found
no substance in the challenge made to the
vires sub Rule (2a) of Rule 19. In our
respectful submission, the decision having
been based upon a challenge made in general
terms and making no reference to the
manifest objectives contained in Rule 1(A),
would also require reconsideration by a larger
Bench.
27. Then there is another dimension
involved in the matter. In the case of Pralhad
Gajbhiye it has been held by the Division
Bench of this Court that while furlough is a
matter of right, parole cannot be claimed as
a matter of right. If parole cannot be claimed
as a matter of right then it would be also
necessary for us to know as to what is the
basic characteristic of “parole”. Whether it is
a concession offered by the State or merely
an administrative action of the State taken as
per the extant administrative policy? If it is
none of this, especially when examined in the
light of the objectives stated in Rule 1(A) and
right of a prisoner to led life with dignity,
could it be still categorised as a special right
given to prisoner in special circumstances ?
In our view, answer to this paradox is
required.”
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9. In this backdrop, the aforesaid two questions were
framed by the Division Bench and they were referred to a
larger Bench for consideration.
10. Mr. Sunil V. Manohar, learned senior counsel
appearing with advocates Mr. A.S. Manohar and Ms. Sonali
Khobragade, raised the following contentions on behalf of the
petitioner.
a) In our jurisprudence and judgments passed
by the Hon’ble Supreme Court of India, it has been
recognized as an accepted position of law that
convicts and prisoners are not completely denuded of
their fundamental rights. Although they stand
incarcerated by procedure established by law and to
that extent their freedom stands curtailed, their right
to be treated with dignity and in a non-arbitrary
manner, remains protected under Articles 14 and 21
of the Constitution of India.

b) Although grant of parole cannot be raised to
the level of a fundamental right, it is certainly a right
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available to a convict and prisoner in terms of the
Rules of 1959 framed under the Prisons Act, 1894.
The said procedure for grant of parole ought to
adhere to the requirements of Articles 14 and 21 of
the Constitution of India, in the light of series of
judgments of the Hon’ble Supreme Court of India and
various High Courts.
c) Once grant of parole is conceded as a
rehabilitative and correctional procedure for inmates
to maintain continuity of life with their family and
other such matters, the rules governing such grant of
parole cannot be arbitrary and they need to
necessarily conform with requirements of Articles 14,
19 and 21 of the Constitution of India.
d) By the amendment in the Rules of 1959
carried out on 16.04.2018, Rule 1(A) was specifically
added which enumerates the objectives for granting
furlough and parole leaves to inmates as progressive
measures of correctional services. Thus, rules
governing the grant of parole must necessarily carry
forward such objectives and they cannot be operated
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in a manner against the very objectives.
e) When the proviso to Rule 19(2) is analysed
in the context of the above contentions, it becomes
clear that it is found to be arbitrary not only because
it fails the classic test of classification and rational
nexus with the object of classification but because it
is per se manifestly arbitrary.
f) In the case of Gajanan Babulal
Bathulwar .vs. State of Maharashtra and others
(supra) when a Division Bench of this Court upheld
the validity of an identical proviso to Rule 19(2) of the
Rules, no contention was raised before the said
Division Bench pertaining to Article 14 of the
Constitution of India and the arbitrariness of the said
proviso. It was also not brought to the notice of the
Division Bench that on that score the proviso was
rendered unconstitutional.
g) The respondents have wrongly sought to
justify insertion of the said proviso on the basis that
there had been rampant misuse of the facility of
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parole, particularly because false and fake medical
certificates regarding serious illness of close relatives,
were produced and undeserving inmates were
granted parole, who some times absconded. It was
submitted that the failure of the respondents in
properly examining and allowing the applications for
parole whereby there was rampant misuse, could not
be used as an excuse to introduce the aforesaid
proviso.
11. Mr. S.Y. Deopujari, learned Public Prosecutor along
with Mr. M.J. Khan, learned Additional Public Prosecutor,
appearing for the respondents (Authorities of the State),
submitted as follows:-
i) The aforementioned judgment of Division
Bench of this Court in the case of Gajanan Babulal
Bathulwar .vs. State of Maharashtra and
others (supra) had considered all the aspects of
challenge to constitutional validity of identical
proviso to Rule 19(2) of the Rules of 1959 and that
there was no occasion for reference to a larger Bench
in the present case.
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ii) It was submitted that the change in
circumstances made the basis by subsequent
Division Bench to refer the said questions to a larger
Bench, was erroneous because introduction of Rule
1(A) and specifying objectives in the Rules of 1959
could not be said to be a change in circumstances as
the very objectives were noted in Full Bench
judgment of the Gujarat High Court in the case of
Bhikhabhai Devshi .vs. State of Gujarat reported
in AIR 1987 Gujarat 136 , which had been the basis
of the facility of parole granted in the Rules of 1959.
iii) It was pointed out that the validity of this
very proviso to Rule 19(2) of the Rules of 1959, as
brought into existence by amendment dated
16.04.2018, had been already considered in two
Division Bench judgments of this Court in Criminal
Writ Petition No. 624 of 2019 (Kalyan
Bansidharrao Renge .vs. State of
Maharashtra) and Criminal Writ Petition No.
507 of 2019 (Sikandar @ Raju s/o Wajir
Inamdar .vs. State of Maharashtra) and that,
therefore, there was no need for reference to a larger
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Bench.

iv) The facility of parole was nothing but an
administrative action as recognized in Full Bench
judgment of this Court in the case of S. Sant
Singh .vs. Secretary, Home Department,
Government of Maharashtra reported in 2006
Cri.L.J. 1515 and that, therefore, the first question
in referral order stands already answered by the said
Full Bench judgment.
v) A Division Bench of this Court in the case of
Amit Gajanan Gandhi .vs. State of Maharashtra
reported in 2014 ALL.MR (Cri) 2132 , while
considering the Rules of 1959 and rampant misuse
thereof, had in fact found that grant of such parole
annually to criminals and inmates was causing grave
inconvenience to the relatives and friends of victims
and witnesses and, therefore, considering over all
degradation of the moral standard in the society, the
authorities were expected to bring relevant changes
in the Rules of 1959 for restoration of faith of the
people. On this basis, it was submitted that the
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existing Rules of 1959 were found to be liberal and
lenient, which perhaps required reconsideration,
thereby indicating that there was no substance in the
contention raised on behalf of the petitioner in the
present writ petition.
vi) The reliance placed on judgments of the
Hon’ble Supreme Court and this Court by the
learned counsel for the petitioner while challenging
validity of proviso to Rule 19(2) of the Rules of 1959,
was misplaced because the said judgments pertained
to treatment to convicts and inmates within the four
walls of the jail with dignity and humaneness with
particular reference to the quality of food and other
such aspects. It was submitted that the said
judgments would not apply to the present case,
because it concerns the question of parole, which
necessarily required the State to balance the needs
of the individual with those of the society at large. It
was submitted that since the Courts had convicted
the petitioner and his sentence had been upheld, the
manner in which parole was to be granted, was
completely in the sphere of the operation of the State
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and that, therefore, the challenge raised in the writ
petition was liable to be rejected.
vii) It was submitted that the contention
regarding proviso to Rule 19(2) of the Rules of 1959,
being violative of Article 14 of the Constitution of
India, as it failed the classification test and that it
was manifestly arbitrary, was wholly misplaced
because there was always a presumption in favour of
constitutionality of a rule framed in accordance with
the provisions of law and that while framing such
rules, specific requirements of conditions applicable
to a class of persons could be taken into
consideration for treating them differently.
12. Mr. Amit Kinkhede, Advocate also assisted this Court
by filing written notes of arguments and placing on record
relevant judgments for appreciation of the rival contentions
raised in this writ petition.
13. Heard the learned counsel for the rival parties. The
evolution of jurisprudence in our system in the context of the
rights available to convicts and inmates demonstrates that an
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effort has been made to balance all the aspects of punishing a
convict, which requires adoption of an approach that ensures
deterrence, prevention, retribution and reformation. While the
convict is required to be punished and thereby kept away from
society, by keeping him/her behind bars, thereby curtailing the
fundamental right guaranteed under Article 21 of the
Constitution of India, as per procedure established by law,
efforts are also required to be made by the criminal justice
system to treat such convicts with dignity and humaneness,
with the objective that once the period of incarceration is over,
such convicts are able to come back into society and assimilate
themselves in such a manner that they are not inclined
towards further criminal activities. As far back as in 1978, in
the case of Sunil Batra .vs. Delhi Administration and
others reported in (1978) 4 S.C.C. 494 , popularly known as
the Sunil Batra-I case, a Constitution Bench of the Hon’ble
Supreme Court, in the context of availability of fundamental
rights to convicts and prisoners held as follows:-
“52. True, our Constitution has no 'due
process' clause or the VIII Amendment; but, in
this branch of law, after Cooper and Maneka
Gandhi, the consequence is the same. For
what is punitively outrageous scandalizingly
unusual or cruel and rehabilitatively counter-
productive, is unarguably unreasonable and
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arbitrary and is shot down by Articles 14 and
19 and if inflicted with procedural unfairness,
falls foul of Article 21. Part III of the
Constitution does not part company with the
prisoner at the gates, and judicial oversight
protects the prisoner's shrunken fundamental
rights, if flouted, frowned upon or frozen by
the prison authority. Is a person under death
sentence or undertrial unilaterally dubbed
dangerous liable to suffer extra torment too
deep for tears ? Emphatically no, lest social
justice, dignity of the individual, equality
before the law, procedure established by law
and the seven lamps of freedom (Article 19)
become chimerical constitutional claptrap.
Judges, even within a prison setting, are the
real, though restricted, ombudsmen
empowered to proscribe and prescribe,
humanize and civilize the life-style within the
carcers. The operation of Articles 14, 19 and
21 may be pared down for a prisoner but not
puffed out altogether. For example, public
addresses by prisoners may be put down but
talking to fellow prisoners cannot. Vows of
silence or taboos on writing poetry or drawing
cartoons are violative of Article 19. So also,
locomotion may be limited by the needs of
imprisonment but binding hand and foot, with
hoops of steel, every man or woman
sentenced for a term is doing violence to Part
III. So Batra pleads that until decapitation he
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is human and so should not be scotched in
mind by draconian cellular insultation nor
stripped of the basic fellowship which keeps
the spirit flickering before being extinguished
by the swinging rope.”
14. The said position of law was followed in the case of
Sunil Batra .vs. Delhi Administration reported (1980) 3
S.C.C. 488 , popularly known as Sunil Batra-II case, wherein
it was reiterated that treatment to a prisoner must satisfy the
test of Articles 14, 19 and 21 of the Constitution of India.
Although the said judgments pertained more to the manner of
treatment to be meted out to convicts and prisoners inside the
four walls of jails, the principles laid down therein are relevant
even for the manner in which such convicts are to be treated in
the context of grant of furlough and parole, since the avowed
objectives of furlough and parole leaves are that they are
progressive measures of correctional services meant for
ensuring that such convicts and prisoners are treated with a
human touch, so that they are able to maintain continuity of
their family life and that they are saved from evil effects of
continuous prison life.
15. In this context, judgment of the Hon’ble Supreme
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court in the case of Asfaq .vs. State of Rajasthan and
others reported in (2017) 15 S.C.C. 55 , assumes
significance because the said judgment specifically pertains to
grant or rejection of parole. In the said judgment, the Hon’ble
Supreme Court has discussed various aspects of the nature of
right of grant of furlough and parole, appreciating the
distinction between the two. It has been analysed in the said
judgment as to the manner in which the requirement of
treating individual convicts and prisoners with dignity in the
context of grant or refusal of parole, can be balanced with the
requirement of the society that convicts and criminals are not
let loose in the society, thereby increasing incidents of crime.
Since the discussion in the said judgment of the Hon’ble
Supreme Court is relevant for both the questions referred for
consideration, it is necessary to quote relevant portions of the
said judgment of the Hon’ble Supreme Court in the case of
Asfaq .vs. State of Rajasthan (supra). The relevant
paragraphs read as follows:-
“18 . The provisions of parole and
furlough, thus, 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
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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 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. Furloughs or
parole can help prepare offenders for success.
19. Having noted the aforesaid public
purpose in granting parole or furlough,
ingrained in the reformation theory of
sentencing, other competing public interest
has also to be kept in mind while deciding as
to whether in a particular case parole or
furlough is to be granted or not. This public
interest also demands that those who are
habitual offenders and may have the
tendency to commit the crime again after
their release on parole or have the tendency
to become a threat to the law and order of the
society, should not be released on parole. This
aspect takes care of other objectives of
sentencing, namely, deterrence and
prevention. This side of the coin is the
experience that great number of crimes are
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26 WP1046-18.odt
committed by the offenders who have been
put back in the street after conviction.
Therefore, while deciding as to whether a
particular prisoner deserves to be released on
parole or not, the aforesaid aspects have also
to be kept in mind. To put it tersely, the
authorities are supposed to address the
question as to whether the convict is such a
person who has the tendency to commit such
a crime or he is showing tendency to reform
himself to become a good citizen.
20. Thus, not all people in prison are
appropriate for grant of furlough or parole.
Obviously, society must isolate those who
show patterns of preying upon victims. Yet
administrators ought to encourage those
offenders who demonstrate a commitment to
reconcile with society and whose behaviour
shows that they aspire to live as law-abiding
citizens. Thus, parole program should be used
as a tool to shape such adjustments.
21. To sum up, 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
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27 WP1046-18.odt
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 has to be 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.
22. Another vital aspect that needs to
be discussed is as to whether there can be
any presumption that a person who is
convicted of serious or heinous crime is to be,
ipso facto, treated as a hardened criminal.
Hardened criminal would be a person for
whom it has become a habit or way of life and
such a person would necessarily tend to
commit crimes again and again. Obviously, if
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28 WP1046-18.odt
a person has committed a serious offence for
which he is convicted, but at the same time it
is also found that it is the only crime he has
committed, he cannot be categorised as a
hardened criminal. In his case consideration
should be as to whether he is showing the
signs to reform himself and become a good
citizen or there are circumstances which
would indicate that he has a tendency to
commit the crime again or that he would be a
threat to the society. Mere nature of the
offence committed by him should not be a
factor to deny the parole outrightly. Wherever
a person convicted has suffered incarceration
for a long time, he can be granted temporary
parole, irrespective of the nature of offence
for which he was sentenced. We may hasten
to put a rider here, viz. in those cases where a
person has been convicted for committing a
serious offence, 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.
23. 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
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29 WP1046-18.odt
judged, at least in part, by the quality of its
prisons and services and recourse 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 constitute human
dignity. For a prisoner all fundamental rights
are an enforceable reality, though restricted
by the fact of imprisonment. [See – Sunil
Batra (2) v. State (UT of Delhi), Maneka
Gandhi v. Union of India and Charles Sobraj v.
Superintendent Central Jail.]
24. It is also to be kept in mind that by
the time an application for parole is moved by
a prisoner, he would have spent some time in
the jail. During this period, various
reformatory methods must have been
applied. We can take judicial note of this fact,
having regard to such reformation facilities
available in modern jails. One would know by
this time as to whether there is a habit of
relapsing into crime in spite of having
administered correctional treatment. This
habit known as “recidivism” reflects the fact
that the correctional therapy has not brought
(sic any change) in the mind of the criminal. It
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30 WP1046-18.odt
also shows that criminal is 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.”
16. In this context, the first question needs to be
answered, particularly in the backdrop of the assertions made
on behalf of the respondents that grant of parole is nothing but
an administrative action, as held by Full Bench of this Court in
the case of S. Sant Singh .vs. Secretary, Home
Department, Govt. of Maharashtra (supra). The nature of
right in the context of parole has been stated by the
respondents as being only a concession dictated by the
administrative policy of the State and that the convict or
prisoner cannot claim any right of parole. In order to examine
the said contention raised on behalf of the State, it would be
appropriate to trace the history of the concept of parole. In the
case of Poonam Lata .vs. M.L. Wadhawan and others
reported in (1987) 3 S.C.C. 347 , the Hon’ble Supreme Court
has taken note of the fact that historically parole was a concept
known to military law and it pertained to release of prisoner
of war on promise to return. It was noted that parole had
become an integral part of the English and American
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31 WP1046-18.odt
jurisprudence with the passage of time and change in attitude
of society towards crime and criminals. While earlier criminals
were treated as persons who had lost all their rights once they
stood convicted and were to be behind bars, with the evolution
of criminal jurisprudence, various concepts developed for
treating convicts and prisoners with a human touch. In the
case of Dharambir .vs. State of U.P. reported in (1979) 3
S.C.C. 645 , the Hon’ble Supreme Court, in the absence of
specific rules for grant of parole, directed that the petitioners
therein be permitted to go on parole for two weeks once a
year, to be repeated through their period of incarceration,
provided their conduct while at large was found to be
satisfactory, in order to facilitate humanising process of the
petitioners therein.
17. A Full Bench of the Gujarat High Court in the case of
Bhikhabai Devshi .vs. State of Gujarat (supra) specifically
took into consideration objectives mentioned in the model
prison manual, as per report submitted by the All India Jail
Manual Committee, wherein it was specified that parole and
furlough rules were part of penal and personal reform with a
view to minimizing the evil effects of prison system and
particularly to enable the inmates to maintain continuity with
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32 WP1046-18.odt
family life and further to develop constructive hope and active
interest in life, so that evil effects of continuous prison life were
reduced.
18. In fact, the said objectives taken note of in the
aforesaid Full Bench judgment of the Gujarat High Court, have
now found crystallization in the form of introduction of Rule
1(A) in the Rules of 1959 of the State of Maharashtra,
introduced by the amendment dated 16.04.2018, which
interestingly reinserted the aforesaid proviso to Rule 19(2) of
the Rules of 1959. The said Rule 1(A) pertaining to objectives
of furlough and parole leaves have been quoted above and now
the avowed objectives of the facility of furlough and parole
have been formalized and stated at the outset in the Rules of
1959.
19. This clearly shows that the State itself has
emphasized on the aspect of rehabilitation, continuity of life
and constructive hope for convicts and prisoners and for their
reformation, even while they are undergoing incarceration. This
would show that even if the Full Bench judgment of this Court
in the case of S. Sant Singh .vs. Secretary, Home
Department, Govt. of Maharashtra (supra) has held that
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33 WP1046-18.odt
parole is generally speaking an administrative action, it cannot
be termed only as a concession given by the State to convicts
and prisoners, which could be withdrawn at will or that the
procedure governing the operation of such concession could
escape the requirement of being non-arbitrary. In the light of
the framing of Rules of 1959 and insertion of Rule1(A) as the
objectives clause in the said Rules, grant of parole to a convict
or prisoner has certainly become a limited right available to the
convict or prisoner in order to satisfy the objectives specifically
laid down in the Rule 1(A) of the Rules of 1959 and once the
circumstances specified in the rules exist, the convict or
prisoner cannot be deprived of such a limited right for grant of
parole.
20. The contention raised strongly on behalf of the
respondents that it has been repeatedly held that furlough
could be said to be a right but not parole and that the interest
of the society needs to be taken into consideration before
elevating parole to the status of a right, is answered by Rule
1(A) of the Rules of 1959 itself, read with other provisions in
the said Rules, which ensure that the convict or prisoner would
not be able to misuse the facility of parole and that the
concerns of the society at large are clearly taken care of by the
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34 WP1046-18.odt
operation of various rules of the Rules of 1959.
21. In this context, it is necessary to appreciate as to
when a convict or a prisoner may be released on emergency or
regular parole. Rule 19(2) pertaining to regular parole clearly
states that the prisoners eligible for furlough shall be eligible
for regular parole for three reasons specified therein.
Eligibility for furlough is specified in Rule 4 of the said Rules,
which was substituted by very same amendment dated
16.04.2018, specifying that Indian prisoners whose annual
conduct reports are good would be eligible for furlough except
21 categories of prisoners stated in the said Rule who would
not be eligible. A perusal of the said 21 categories would show
that the said rule does not extend eligibility for furlough to
prisoners who have at any time escaped or attempted to
escape the lawful custody or they have defaulted in any
manner in surrendering at the appropriate time after release
on parole or furlough, prisoners who are dangerous or
prejudicial to public peace and order, prisoners who are
sentenced to death, prisoners who are sentenced for offences
pertaining to terrorist crimes, kidnapping for ransom, mutiny
against State, prisoners suffering from mental illness and other
such detailed categories. Thus, there is an extensive filter in
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35 WP1046-18.odt
the form of Rule 19(2) read with Rule 4 of the Rules of 1959,
pertaining to eligibility for grant of regular parole, because
eligibility for grant of regular parole is limited to those
prisoners who under Rule 4 of the Rules of 1959 are eligible for
furlough.
22. Apart from this, Rule 19(2) itself provides, depending
upon the duration of sentence, as to when the prisoner can be
considered for first release on regular parole and subsequent
releases after specified periods of incarceration have expired,
after the last release on parole. Rule 20 specifies that parole
has not to be counted as remission of sentence. Rule 23
specifies the enquiries required to be made by the competent
authority while considering an application for parole and the
requirement for obtaining police enquiry report in that context.
Rule 24 requires the competent authority to ensure that the
prisoner applying for parole executes surety bonds and
personal bonds in forms specified in the rules. Proviso to Rule
24 requires the prisoner to report to the nearest Police Station
as a condition for grant of parole. Rule 24-A lays down the
requirement of surety bond and deposits to be made by the
prisoner, further specifying that in case the prisoner does not
surrender on the due date, the amount of deposit shall be
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36 WP1046-18.odt
forfeited and case under Section 224 of the IPC would be
registered and further that the procedure under Sections 82
and 83 of the Cr.P.C. would be initiated. Rule 24-A also
requires the prisoner on parole to give a declaration and
undertaking.
23. Thus, the Rules of 1959 extensively provide for a
regimen where only deserving prisoners who have shown
good conduct in and outside the jail are considered for grant of
parole. With such a mechanism provided by the Rules of 1959,
the objectives specifically stated in Rule 1(A) of the Rules of
1959, can be achieved and in that context the content and
texture of the facility of parole, being a right or otherwise,
needs to be analysed. On an analysis of the aforesaid Rules of
1959, it becomes clear that although the decision of grant of
parole may be classified as having an administrative flavour ,
the manner in which such a decision is to be arrived at and the
objectives for which parole is to be granted, shows that within
the procedure and safeguards provided in the Rules of 1959,
the convict or prisoner does have a limited right for grant of
parole and that the discretion for grant of parole vested in the
State is hemmed in by the procedure specified in the Rules of
1959, which are meant for achieving the objectives stated in
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37 WP1046-18.odt
Rule 1(A) of the said Rules.
24. Therefore, question (i) referred to this Bench is
answered by holding that parole is not a mere
administrative decision dictated only by the
administrative policy of the State but it is a limited
legal right available to the convict or prisoner subject
to satisfaction of the requirements specified in the
Rules of 1959 for grant of parole, with the avowed
objectives to be achieved as specified in Rule 1(A) of
the said Rules .
25. As regards the second question regarding validity of
proviso to Rule 19(2) of the Rules of 1959, the respondents
have emphasized that the said question did not require any
reference to a larger Bench because the earlier Division Bench
judgment in the case of Gajanan Babulal Bathulwar .vs.
State of Maharashtra and others (supra) has already
upheld the constitutional validity of an identical proviso. But, a
perusal of judgment in the case of Gajanan Babulal
Bathulwar .vs. State of Maharashtra and others (supra)
shows that submissions were made before the Division Bench
of this Court regarding the validity of an identical proviso, only
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38 WP1046-18.odt
in the context of Article 21 of the Constitution of India. The
entire emphasis in the said judgment was on the question as to
whether introduction of such a proviso infringed fundamental
right of the convict or prisoner enshrined in Article 21 of the
Constitution of India. It was held by the Division Bench that
release on parole was not an absolute right and since there had
been misuse of the facility of parole, the State was well within
its right to curb such misuse by introducing such a proviso in
the Rules. But, nowhere in the said judgment is any discussion
on the aspect as to whether such a proviso violates Article 14
of the Constitution of India, because it created a class within a
class of persons and such classification could not be said to be
based on an intelligible differentia and that in any case the
basis of such classification had no rational nexus to the object
sought to be achieved. There was also no submission made on
manifest arbitrariness of the proviso. Therefore, there is no
substance in the contention raised on behalf of the
respondents that the second question did not deserve
consideration in view of the earlier judgment of the Division
Bench of this Court in the case of Gajanan Babulal
Bathulwar .vs. State of Maharashtra and others (supra).
26. In the challenge raised in the present writ petition,
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39 WP1046-18.odt
particularly in the context of Article 14 of the Constitution of
India, it needs to be examined as to whether the petitioner is
justified in contending that the proviso to Rule 19(2) of the
Rules of 1959 violates Article 14 of the Constitution of India
because it fails the classification test and also because it is per
se manifestly arbitrary in its operation.
27. The learned Public Prosecutor relied upon judgment
of the Hon’ble Supreme Court in the case of Shri Ram
Krishna Dalmia .vs. Shri Justice S.R. Tendolkar reported
in AIR 1958 S.C. 538 wherein the twin conditions of
permissible classification have been laid down and it was
emphasized that the Hon’ble Supreme Court in the said
judgment had laid down that presumption operated in favour of
constitutionality of an enactment and the burden was upon
those who attacked it to show that there was transgression of
constitutional principles. It was emphasized that the Hon’ble
Supreme Court had laid down that the Legislature was free to
recognize various degrees of harm and to confine restrictions
to those cases where the need was deemed to be clearest . On
this basis, it was contended that the classic twin conditions test
for permissible classification was clearly passed by the said
proviso to Rule 19(2) of the Rules of 1959 and that there was
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40 WP1046-18.odt
no substance in the contention raised on behalf of the
petitioner.
28. In this context, it needs to be examined as to whether
the aforesaid proviso provides for classification of convicts or
prisoners into two classes on the basis of intelligible differentia,
which has rational nexus to the object of such classification.
The said proviso creates a class of prisoners who shall not be
released on either emergency or regular parole for a period of
one year after expiry of their last emergency or regular
parole, except in case of death of nearest relatives mentioned
in Rule 19(1) of the Rules of 1959. Thus, such a class of
prisoner is distinguished from those prisoners whose
emergency or regular parole had expired more than one year
earlier. The question is, whether such classification can be said
to be based on an intelligible differentia and whether it can be
said to have a rational nexus with the object of such
classification. The objectives of parole leave are specifically
stated in the above quoted Rule 1(A) of the Rules of 1959.
Now such a classification obviously has nothing to do with the
said objectives and, therefore, application of the said
objectives to such classification would show that the classic
twin conditions test is not satisfied.
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41 WP1046-18.odt
29. In such a situation, the learned Public Prosecutor
appearing for the respondents emphasized that the object
sought to be achieved was to prevent misuse of the facility of
parole. In order to buttress the said submission, the learned
Public Prosecutor referred to a chart annexed to the reply filed
on behalf of respondent no.2, to claim that number of prisoners
had either failed to surrender after grant of parole or they had
failed to report on the due date and that they had surrendered
much later. It was contended that the statistics available with
the State, as manifested in the chart at Annexure R-1 to the
said reply, demonstrated rampant misuse of emergency and
regular parole facility by prisoners and that, therefore, the
object sought to be achieved by introduction of the proviso,
was to curtail such misuse. The learned senior counsel
appearing for the petitioner took us through the figures
mentioned in the said chart and contended that a proper
analysis of the same, would demonstrate that the claim of
rampant misuse by prisoners of parole facility, was misplaced
and not supported by the statistics on record. At this juncture,
the learned Public Prosecutor referred to a judgment of Division
Bench of this Court in the case of Amit Gajanan Gandhi .vs.
State of Maharashtra (supra) to contend that judicial notice
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42 WP1046-18.odt
of such rampant misuse had been taken by the Division Bench
and it was suggested that stricter norms for grant of parole
were the order of the day.
30. Apart from the fact that there is substance in the
contention raised on behalf of the petitioner that the statistics
placed on record, by way of the aforesaid chart on behalf of
the respondents, do not really support the claim of rampant
misuse of the parole facility by the prisoners, the contention
regarding alleged misuse of the facility of parole by prisoners
demonstrates that the State has conceded to the fact that
applications for grant of parole have not been processed in a
proper manner and in terms of the requirements of the Rules of
1959 referred to above, as a result of which large number of
undeserving applications of prisoners have been granted. This
only indicates the inefficiency and perhaps connivance of the
officials of the respondents-State while processing and granting
applications for parole. The misuse, if any, of the facility of
parole, can only be prevalent when the State officials have
failed to implement the Rules of 1959 in the strictest manner
possible. The State cannot hide behind the possibility of
misuse thereby conceding its inability to process the genuine
from the non-genuine applications for parole and then to
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43 WP1046-18.odt
contend that for achieving the object of preventing misuse of
facility of parole, it was free to introduce an additional fetter
like the aforesaid proviso to Rule 19(2) of the Rules of 1959.
This Court fails to understand how creating a class of prisoners
who had been released on emergency or regular parole, within
the past one year, from a wider class of prisoners and then to
deprive them of the facility of parole, despite the fact that they
satisfied the specific reasons for grant of such parole, could be
said to be based on an intelligible differentia, in order to
achieve the so called objective of preventing “rampant misuse”
of the facility of parole. There can be no doubt about the fact
that the said proviso to Rule 19(2) of the Rules of 1959 fails the
said test and thereby violates Article 14 of the Constitution of
India.
31. The contention of rampant misuse of parole facility
by prisoners and that being a justification for introduction of
proviso to Rule 19(2) of Rules of 1959, also needs to be
examined in the backdrop of the above referred safeguards in
various other Rules. In fact, Rule 19(2) (A) (B) and (C) of the
said Rules itself specify that prisoners shall be eligible for
maximum of 45 days parole in a year, which can be extended
upto 60 days only once in three years and that too under
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44 WP1046-18.odt
exceptional circumstances. Thus, a prisoner cannot be
roaming around free in society without any restrictions and the
cap of 45 days in a year and 60 days once in three years
applies. This completely negates the apprehension expressed
on behalf of the respondents. In any case, upon any default by
the prisoner during release on parole makes him/her ineligible
for parole in the future. This further demonstrates the fallacy
in the aforesaid contention raised on behalf respondents. If the
objectives stated in Rule 1(A) of the Rules of 1959 and the law
laid down by the Hon’ble Supreme Court in Asfaq .vs. State
of Rajasthan (supra) regarding humane treatment of
prisoners while addressing concerns of the society, is to be
followed, then the said proviso to Rule 19(2) of the Rules of
1959 cannot be sustained. The said Rules have necessary
safeguards incorporated to take care of prisoners who attempt
to misuse the facility of parole. In this context also the said
proviso is rendered arbitrary and unsustainable.
32. Another incongruity that emerges in this context is
that while under Rule 19 (2) (A) (i) and (ii) of the Rules of 1959,
a prisoner can be considered and becomes eligible for parole
after completion of six months of actual imprisonment to be
counted from his last return either from furlough or regular
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45 WP1046-18.odt
parole, under the aforesaid proviso to Rule 19 (2), parole
application of a particular class of prisoner cannot be
considered till expiry of one year from his/her last emergency
or regular parole, except in case of death of his/her nearest
relative. This incongruity also hints at the arbitrary manner in
which the State has introduced the said proviso, as it militates
against the existing mechanism under the very same Rule.
This aspect has been adverted to by Division Bench of this
Court in the cases of Kalyan Bansidharrao Renge .vs.
State of Maharashtra (supra) and Sikandar @ Raju s/o
Wajir Inhamdar .vs. State of Maharashtra (supra) and it
has been observed that upon completion of six months, the
prisoner only becomes eligible under Rule 19 (2) (A) (i) and (ii)
of the Rules of 1959, for parole but no vested right is created in
him/her. True it is that a prisoner may not be able to claim a
vested right but if he/she genuinely satisfies all the
requirements of grant of regular parole, to deprive him/her of
parole by creating a new class of prisoners under the said
proviso to Rule 19 (2) of the Rules of 1959, is wholly arbitrary
and falls foul of Article 14 of the Constitution of India. This
aspect was not brought to the notice of the Division Bench of
this Court in the said cases. Therefore, reliance placed on the
same on behalf of the respondents does not take their case
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46 WP1046-18.odt
any further.
33. Another aspect of the said proviso is that within the
aforesaid class of prisoners created by the proviso, an
exception is carved out in cases of prisoners who apply for
grant of parole in case of death of nearest relative. When the
learned Public Prosecutor was questioned as to why an
exception was carved out only in the case of death of nearest
relative, it was submitted that while death was a certainty, the
other reasons for grant of parole could not be said to be a
certainty. It was submitted that occurrence of death was a
certain event for which an exception was carved out and,
therefore, it was sustainable.
34. A perusal of Rule 19(2) of the Rules of 1959 quoted
above, shows that such a basis for creating an exception
certainly had no nexus with the objectives for grant of parole
leaves specified in Rule 1(A) of the Rules of 1959. If the
objectives for grant of parole leave included under Rule 1(A)
(a) to enable the inmate to maintain continuity with family life
and under Rule 1(A)(d) to enable him/her to develop active
interest in life, it is difficult to understand why the prisoner in
whose case period of one year from grant of last emergency or
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47 WP1046-18.odt
regular parole has expired, cannot be released even when he
has a genuine case to show that either his father or mother or
spouse or son or daughter is suffering from serious illness or
that a natural calamity has occurred such as house collapse,
flood, fire or earthquake. It appears to be highly insensitive
and even cruel that a prisoner is to be told that since period of
one year from the last emergency or regular parole has
expired, he cannot be granted parole even if there is serious
illness of close relatives or that a natural calamity has
occurred, because such events are uncertain and he can be
granted parole only if there is death, which is a certainty. In
other words, a prisoner, just because the aforesaid period of
one year is to expire, will not be able to see his/her close
relatives during serious illness, even facing death, and also
when a natural calamity occurs , but he would have to wait for
death to occur for grant of parole. This runs absolutely counter
to the said avowed objectives of the Rules of 1959, pertaining
to grant of parole as specifically stated in Rules 1(A)(a) and (d)
of the Rules of 1959. This indicates that apart from the
classification test, the aforesaid proviso to Rule 19(2) of the
Rules of 1959, is manifestly arbitrary, on the face of it.
35. In this context, the position of law enunciated in a
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48 WP1046-18.odt
recent judgment of the Hon’ble Supreme Court in the case of
Navtej Singh Johar .vs. Union of India, reported in (2018)
10 S.C.C. 1, assumes significance. It is stated by the Hon’ble
Supreme Court in the context of the content of the right to
equality under Article 14 of the Constitution of India, as
follows:-
“409. Equating the content of equality with
the reasonableness of a classification on which
a law is based advances the cause of legal
formalism. The problem with the classification
test is that what constitutes a reasonable
classification is reduced to a mere formula:
the quest for an intelligible differentia and the
rational nexus to the object sought to be
achieved. In doing so, the test of classification
risks elevating form over substance. The
danger inherent in legal formalism lies in its
inability to lay threadbare the values which
guide the process of judging constitutional
rights. Legal formalism buries the life-giving
forces of the Constitution under a mere
mantra. What it ignores is that Article 14
contains a powerful statement of values – of
the substance of equality before the law and
the equal protection of laws. To reduce it to a
formal exercise of classification may miss the
true value of equality as a safeguard against
arbitrariness in State action. As our
constitutional jurisprudence has evolved
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49 WP1046-18.odt
towards recognizing the substantive content
of liberty and equality, the core of Article 14
has emerged out of the shadows of
classification. Article 14 has a substantive
content on which, together with liberty and
dignity, the edifice of the Constitution is built.
Simply put, in that avatar, it reflects the quest
for ensuring fair treatment of the individual in
every aspect of human endeavor and in every
facet of human existence.”
36. Applying the said test to the said proviso to Rule
19(2) of the Rules of 1959, would show that it can be termed to
be nothing but manifestly arbitrary.
37. The contentions raised on behalf of the respondents
go against the law laid down by the Hon’ble Supreme Court,
specifically in the context of parole leaves, in the case of
Asfaq vs. State of Rajasthan (supra). The respondents are
not justified in contending that Articles 14, 19 and 21 of the
Constitution of India in their restricted form are available to
prisoners only within four walls of the jail and they are
available only in the context of quality of food and such other
facilities inside jail. The objectives specified in Rule 1(A) of the
Rules of 1959, as also the evolution of law pertaining to parole,
noted by the Hon’ble Supreme Court in Asfaq .vs. State of
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50 WP1046-18.odt
Rajasthan (supra) shows that the prisoner does have a right to
be treated with dignity and in a non-arbitrary manner even
when his/her application for parole leave to come out of the
four walls of the jail, is to be considered within the rigours of
the mechanism laid down in the Rules of 1959. Introduction of
the said proviso to Rule 19(2) of the Rules of 1959 goes against
the grain of the said evolution of law, as also the very
objectives encapsulated in Rule 1(A), thereby rendering it
whimsical, arbitrary and hence unsustainable.
38. The respondents-State Authorities cannot be
permitted to raise the bogey of misuse of the facility of parole
to introduce such a proviso, which runs counter not only to the
aforesaid objectives specified in Rule 1(A) of the said Rules, but
it violates the rights available to convicts and prisoners under
Articles 14, 19 and 21 of the Constitution of India, in the
context of consideration of their applications for grant of
parole. It is relevant to note that even in the judgment of
Amit Gajanan Gandhi .vs. State of Maharashtra (supra)
when the Division Bench of this Court referred to gross misuse
and misutilisation of the provision of parole, it was specifically
noted in paragraph 12 as follows:-
“12. …...This is a case of sheer casual
approach and gross negligence on the part of
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51 WP1046-18.odt
authorities in dealing with the provision of
parole.”
39. Thus , viewed from any angle, the arbitrariness of the
said proviso is evident and in that context reference made by
the learned senior counsel for the petitioner to judgment of the
Hon’ble Supreme Court in the case of State of Madhya
Pradesh .vs. Nandlal Jaiswal reported in (1986) 4 S.C.C.
566 becomes relevant. In the said judgment, while
acknowledging the fact no one could claim as against the
State, a right to carry out a trade or business in liquor and the
State could not be compelled to part with its exclusive right to
do so, it was held that when the State decides to grant such
right or privilege to others, the State cannot escape the rigour
of Article 14 of the Constitution of India. Thus, even if facility
of parole could be a policy of the State whereby it had
conceded a limited right to the convict or prisoner within the
four corners of the Rules of 1959, once such a limited right was
conceded, the State was bound to operate such a procedure
under the said Rules, in a non-arbitrary manner. The moment
it is found that the insertion of proviso to Rule 19(2) of the
Rules of 1959 is arbitrary and it violates Article 14 of the
Constitution of India, it deserves to be struck down as being
invalid and unconstitutional. The right of a convict or prisoner
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52 WP1046-18.odt
under Article 21 of the Constitution of India to be treated with
dignity would also require the State to treat such prisoners and
convicts in a non-arbitrary manner and not at its whims and
fancies. Therefore, on the touchstone of both Article 14 and
Article 21 of the Constitution of India, the aforesaid proviso to
Rule 19(2) of the Rules of 1959 is found to be ultra vires,
unconstitutional and liable to be struck down.
40. This aspect was never brought to the notice of the
Division Bench of this Court in the case of Gajanan Babulal
Bathulwar .vs. State of Maharashtra and others (supra).
At this juncture, it is relevant to observe that the repeated
introduction and deletion of the said proviso to Rule 19(2) of
the Rules of 1959, on the part of the State shows that even the
State is not clear about its own policy. Such repeated
somersaults in the State policy show the arbitrary manner in
which the State has been treating prisoners and convicts in the
State of Maharashtra. The dates noted above show that
between 28.11.1989 and 06.02.2007, the proviso operated
while between 07.02.2007 and 22.02.2012, it stood deleted,
during which period the said limitation of period of one year did
not apply to applications made by the convicts or prisoners
for grant of parole. The proviso again stood added and
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53 WP1046-18.odt
operated when applications were considered for grant of parole
between 23.02.2012 and 25.08.2016 , whereafter again it
stood deleted and between the period 26.08.2016 and
15.04.2018, it did not apply. Thereafter, on 16.04.2018 the
said proviso was again brought back in the Rules. The
arbitrary approach of the State is manifested in the manner in
which it has chosen to treat convicts and prisoners in the State
of Maharashtra, in the context of grant or refusal of parole, at
its own whims and fancies.
41. In view of the above, it is found that the proviso to
Article 19(2) of the Rules of 1959 introduced in terms of
Notification dated 16.04.2018 violates Article 14 and 21 of the
Constitution of India and thereby question (ii) is answered
against the State .
42. Accordingly, the said proviso to Rule 19(2) of the
Rules of 1959 introduced in terms of Notification dated
16.04.2018 is struck down as violative of Articles 14 and 21 of
the Constitution of India and it is found to be ultra vires even to
the objectives stated in Rule 1(A) of the Rules of 1959.
43. The reference and the aforesaid two questions are
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54 WP1046-18.odt
answered in the above manner and the writ petition is directed
to be placed before the appropriate Bench for disposal.
(P.N. Deshmukh, J.)
(Manish Pitale, J.)

(Smt. Pushpa V. Ganediwala, J.)
…
halwai/p.s.
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