RASHIDUL JAFAR @ CHOTA vs. THE STATE OF UTTAR PRADESH

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION Writ Petition (Criminal) No 336 of 2019 Rashidul Jafar @ Chota ... Petitioner(s) Versus State of Uttar Pradesh & Anr ... Respondent(s) W.P.(Crl.) No. 398/2021 W.P.(Crl.) No. 376/2021 W.P.(Crl.) No. 226/2021 W.P.(Crl.) No. 117/2020 W.P.(Crl.) No. 265/2020 W.P.(Crl.) No. 306/2020 W.P.(Crl.) No. 360/2020 W.P.(Crl.) No. 348/2020 W.P.(Crl.) No. 112/2021 W.P.(Crl.) No. 127/2021 W.P.(Crl.) No. 134/2021 Signature Not Verified Digitally signed by CHETAN KUMAR Date: 2022.09.10 19:07:23 IST Reason: W.P.(Crl.) No. 143/2021 W.P.(Crl.) No. 147/2021 2 W.P.(Crl.) No. 142/2021 W.P.(Crl.) No. 149/2021 W.P.(Crl.) No. 153/2021 W.P.(Crl.) No. 369/2021 W.P.(Crl.) No. 397/2021 W.P.(Crl.) No. 421/2021 W.P.(Crl.) No. 446/2021 W.P.(Crl.) No. 502/2021 W.P.(Crl.) No. 488/2021 W.P.(Crl.) No. 514/2021 W.P.(Crl.) No. 497/2021 W.P.(Crl.) No. 499/2021 W.P.(Crl.) No. 494/2021 W.P.(Crl.) No. 508/2021 W.P.(Crl.) No. 1/2022 W.P.(Crl.) No. 123/2020 W.P.(Crl.) No. 7/2020 W.P.(Crl.) No. 23/2020 W.P.(Crl.) No. 189/2020 W.P.(Crl.) No. 277/2020 W.P.(Crl.) No. 75/2021 W.P.(Crl.) No. 341/2020 3 W.P.(Crl.) No. 336/2020 W.P.(Crl.) No. 15/2021 W.P.(Crl.) No. 417/2020 W.P.(Crl.) No. 61/2021 W.P.(Crl.) No. 86/2021 W.P.(Crl.) No. 115/2021 W.P.(Crl.) No. 122/2021 W.P.(Crl.) No. 397/2020 W.P.(Crl.) No. 35/2021 W.P.(Crl.) No. 414/2020 W.P.(Crl.) No. 407/2020 W.P.(Crl.) No. 421/2020 W.P.(Crl.) No. 373/2020 W.P.(Crl.) No. 67/2022 J U D G M E N T Dr Dhananjaya Y Chandrachud, J 1. In this batch of cases which emanates from Uttar Pradesh, five hundred and twelve convicts who are undergoing a sentence of imprisonment for life seek premature release. 4 2. On 1 August 2018, the Government of Uttar Pradesh issued a policy governing premature release of convicts with the approval of the Governor under Article 161 of the Constitution. The policy is described as a “Standing Policy regarding premature release of prisoners sentenced to life imprisonment on the occasion of th every Republic Day (26 January)”. The policy sets out categories of convicts entitled to premature release. Among those categories is para 2(b). The translation provided by the Additional Advocate General is extracted below: “2(b). All male convicted prisoners sentenced to imprisonment for life whose crime is not covered by any of the sub-rule under prohibited category defined in para-3 below and who have undergone, including undertrial custody, sentence of 16 years without remission and 20 years with remission.” 3. ‘Prohibited categories’ are spelt out in para 3 of the policy. Clause (vi) of the prohibited categories is set out below: “(vi) All such convicted prisoners sentenced to imprisonment for life who have been convicted for the crimes related to incidents of massacre (three or more than three murders).” 4. Para 4 of the policy provided as follows: “4. All Senior Superintendent/Superintendent/ Superintendent In charge shall examine the eligibility of all such convicted prisoners sentenced to imprisonment for life detained in jails in terms of the prescribed policy/directions contained in the aforesaid paras and shall make available in the prescribed proforma enclosed herewith the proposal of premature release of all eligible prisoners to Zonal Deputy st Inspector General of Prisons by 31 October every year.” 5. Each Zonal Deputy Inspector General of Prisons was required to examine all 5 proposals in light of the policy so as to ensure that no eligible person is left out of consideration. Each Zonal DIG had to submit the proposal to the Inspector General of Prisons annually by 15 November. The Inspector General of Prisons was further required to forward the proposal to the Government annually by 30 November. A Committee was constituted in terms of para 8 of the policy for examining and disposing all cases upon the receipt of the proposal. The Committee was required to submit its recommendations for premature release of convicted prisoners sentenced to imprisonment for life to the Government annually by 15 December on which the Government was to take a decision in terms of the prescribed procedure. 6. On 28 July 2021, an amendment was brought about to the policy. Para 2(b) of the earlier policy document dated 1 August 2018 was modified so as to provide that a convict undergoing imprisonment for life would not be released until the age of sixty years is attained. Para 2(b) as amended on 28 July 2021 was in the following terms: “2(b) Such male convicted prisoners sentenced to imprisonment for life and are incarcerated in prison, whose crime is not covered by any of the sub-rule under prohibited category defined in para-3 below and who have completed age of 60 years and have undergone, including undertrial custody, sentence of 16 years without remission and 20 years with remission.” 7. However, convicts falling within the prohibited category set out in para 3(vi) of the original policy document were granted a relaxation in the amended policy dated 28 July 2021. Para 2(g) of the amended policy dated 28 July 2021 is as follows: 6 “2(g) Such convicted prisoners sentenced to imprisonment for life and are incarcerated in prison, whose crime is covered by the sections mentioned in prohibited category in sub-rule-(vi), (viii) and (ix) of para- 3 below, and who have completed age of 60 years and have undergone, including undertrial custody, sentence of 25 years without remission and 30 years with remission.” 8. The imposition of the requirement that a convict undergoing imprisonment for life would not be eligible for premature release until attaining the age of sixty years led to the institution of petitions under Article 32 of the Constitution before this Court. The challenge was inter alia on the ground that the plea for premature release must be considered on the basis of the law as it stood on the date of conviction and that a subsequent policy which operates to restrict the ambit of a policy prevailing on the date of conviction must not be allowed to obstruct the plea for release. Moreover, it was urged that the requirement that a convict cannot be considered for premature release before the age of sixty would violate the right to life under Article 21 by subjecting a convict to long years of incarceration. In several 1 judgments of this Court, including State of Haryana v Jagdish , it has been held that an application for premature release has to be considered on the basis of the policy as it stood on the date when the accused was convicted of the offence by 2 the trial court. A similar view was taken in State of Haryana v Raj Kumar @ Bitu . 9. Subsequently, on 27 May 2022, the policy dated 1 August 2018 (as amended on 28 July 2021) was further amended. The amendments are specific to paras 1, 2(b), 2(f) and 2(g) and by the insertion of para 12 in the policy dated 1 August 2018, as 1 (2010) 4 SCC 216 2 (2021) 9 SCC 292 7 amended. For the present purpose, it would suffice to note that the requirement that a convict undergoing life imprisonment could be considered for release only after attaining the age of sixty has been deleted. The amended clause in terms of the amendment dated 27 May 2022 reads as follows: “2(b) All such male convicted prisoners sentenced to imprisonment for life and are incarcerated in prison, whose crime is not covered by any of the sub-rule under prohibited category defined in para-3 below and who have undergone, including undertrial custody, sentence of 16 years excluding remission and 20 years including remission.” 10. Moreover, as regards prisoners who fall in the prohibited category contained in para 3(vi), the relevant clause reads as follows: “2(g) All such convicted prisoners sentenced to imprisonment for life and are incarcerated in prison, whose crime is covered by the sections mentioned in prohibited category in sub-rule–(vi), (viii) and (ix) of para-3 below, and who have undergone, including undertrial custody, sentence of 25 years with excluding remission and 30 years including remission.” 11. Following the amendment, counter affidavits were filed before this Court in several pending proceedings, including among them the following: 3 (i) v ; Dev Nath Singh State of U P 4 (ii) Rajkumar v The State of Uttar Pradesh ; and 5 (iii) Brij Bhushan v The State of Uttar Pradesh . 3 Writ Petition (Crl) No 528 of 2021 decided on 21 February 2022 4 Writ Petition (Crl) No 36 of 2022 decided on 11 March 2022 5 Writ Petition (Crl) No 75 of 2022 decided on 14 March 2022 8 12. The orders of this court in above petitions under Article 32 noted that the cases of the convicts undergoing life imprisonment would be dealt with in accordance with the policy as it existed prior to the amendment which was brought about on 28 July 2021. 13. In order to facilitate the disposal of this batch of cases, an order was passed by this Court on 24 August 2022 requiring a tabulated statement to be prepared dealing with: (i) The offence for which the petitioners were convicted; (ii) The date of the judgment of the trial court; (iii) The year of the filing of the criminal appeal before the High Court; (iv) The period of imprisonment undergone: (a) Without remission; and (b) With remission; (v) Whether the petitioners are on bail; and (vi) The current status of the application for premature release. 14. Such a statement has been shared by counsel for the petitioners and has been shared with Ms Garima Prashad, AAG appearing on behalf of the State of Uttar Pradesh. The AAG has facilitated a due verification and submitted a statement containing the details of 512 prisoners covered by the present batch of cases, whose cases would require to be considered in terms of the policy. The statement 6 is annexed to this order. 6 Annexure-A 9 15. We have heard learned counsel appearing on behalf of the petitioners in the proceedings under Article 32 of the Constitution and Ms Garima Prashad, AAG. 16. The implementation of the policy for premature release has to be carried out in an objective and transparent manner as otherwise it would impinge on the constitutional guarantees under Articles 14 and 21. Many of these life convicts who have suffered long years of incarceration have few or no resources. Lack of literacy, education and social support structures impede their right to access legal remedies. Once the state has formulated its policy defining the terms for premature release, due consideration in terms of the policy must be given to all eligible convicts. The constitutional guarantees against arbitrary treatment and of the right to secure life and personal liberty must not be foreclosed by an unfair process of considering applications for premature release in terms of the policy. 17. Significantly, the policy has been amended to remove the requirement of convicts submitting an application for premature release and instead places the responsibility on the officers of the state to consider eligible prisoners. The prison administration, legal services authorities at the district and state level and officers of the police department and the state must diligently ensure that cases of eligible prisoners are considered on the basis of policy parameters. We have gained a distinct impression, based on the cases which have come before the court here and even earlier that there is a general apathy towards ensuring that the rights which have been made available to convicts who have served out their sentences in terms of the policy are realized. This results in the deprivation of liberty of those 10 who are entitled to be released. They languish in overcrowded jails. Their poverty, illiteracy and disabilities occasioned by long years of incarceration are compounded by the absence of supportive social and legal structures. The promise of equality in our Constitution would not be fulfilled if liberty were to be conditional on an individual’s resources, which unfortunately many of these cases provide hard evidence of. This situation must change and hence this court has had to step in. We now proceed to formulate peremptory directions. 18. We direct that: (i) All cases for premature release of convicts undergoing imprisonment for life in the present batch of cases shall be considered in terms of the policy dated 1 August 2018, as amended, subject to the observations which are contained herein. The restriction that a life convict is not eligible for premature release until attaining the age of sixty years, which was introduced by the policy of 28 July 2021, stands deleted by the amendment dated 27 May 2022. Hence, no case for premature release shall be rejected on that ground; (ii) In the event that any convict is entitled to more liberal benefits by any of the amendments which have been brought about subsequent to the policy dated 1 August 2018, the case for the grant of premature release would be considered by granting benefit in terms of more liberal amended para/clause of the policies. All decisions of premature release of convicts, including those, beyond the present batch of cases would be entitled to such a 11 beneficial reading of the policy; (iii) In terms of para 4 of the policy dated 1 August 2018, no application is required to be submitted by a convict undergoing life imprisonment for premature release. Further, through amendment dated 28 July 2021, para 3(i), which included convicts undergoing life imprisonment who have not filed application for pre-mature release in the prohibited category, has specifically been deleted. Accordingly, all cases of convicts undergoing life sentence in the State of Uttar Pradesh who are eligible for being considered for premature release in terms of the policy, including but not confined to the five hundred and twelve prisoners involved in the present batch of cases, shall be considered in terms of the procedure for premature release stipulated in the policy; (iv) The District Legal Services Authorities in the State of Uttar Pradesh shall take necessary steps in coordination with the jail authorities to ensure that all eligible cases of prisoners who would be entitled to premature release in terms of the applicable policies, as noticed above, would be duly considered and no prisoner, who is otherwise eligible for being considered, shall be excluded from consideration. (v) These steps to be taken by DLSAs would, include but not be limited to, Secretaries of DLSAs seeking status report on all prisoners undergoing life imprisonment in the prisons falling under their jurisdiction in terms of the format of table prepared in Annexure-A covering the details mentioned in 12 para 13 of this judgment and ensuring its submission by relevant authorities within eight weeks of this order as well as on an annual basis. Further, DLSAs would utilize this status report to monitor and engage with respective authorities to ensure the implementation of our directions to ensure premature release in terms of applicable policies in all eligible cases of convicts undergoing life sentence on a continuous basis; (vi) The applications for premature release shall be considered expeditiously. Those cases which have already been processed and in respect of which reports have been submitted shall be concluded and final decisions intimated to the convict no later than within a period of one month from the date of this order. Cases of eligible life convicts who are (i) above the age of seventy years; or (ii) suffering from terminal ailments shall be taken up on priority and would be disposed of within a period of two months. The Uttar Pradesh State Legal Services Authority shall, within a period of two weeks, lay down the priorities according to which all other pending cases shall be disposed of. All other cases shall, in any event, be disposed of within a period of four months from the date of this order; and (vii) Where any convict undergoing life imprisonment has already been released on bail by the orders of this Court, the order granting interim bail shall continue to remain in operation until the disposal of the application for premature release. 13 19. The petitions are accordingly disposed of. A copy of the present judgment shall be transmitted also to the Secretary of the UP State Legal Services Authority. 20. In view of the disposal of the petitions, pending applications stand disposed of. …..…..…....…........……………….…........J. [Dr Dhananjaya Y Chandrachud] …..…..…....…........……………….…........J. [Hima Kohli] New Delhi; September 06, 2022 -S- Annexure- A 1

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