Prisoners may seek multiple paroles a year, Bombay HC strikes down discriminatory restriction [Read Judgement]

In a significant ruling, the Bombay High Court recently highlighted that parole is limited right available to prisoners, and not merely an administrative decision. Notably, the Court has also struck down a provision that had barred convicts in Maharashtra from seeking multiple paroles in a year. In this regard, a Full Bench comprising Justices P N Deshmukh, Manish Pitale and Pushpa V Ganediwala struck down a proviso introduced to Rule 19 (2) of the Prisons Rules, 1959 under Section 59(5) of the Prisons Act, 1894..The Court held, firstly, 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.”.As for the proviso under challenge, it had stated that a prisoner shall not be released on an emergency or regular parole for one year after the expiry of his/her last parole, except in case of death of nearest relatives i.e. father, mother, spouse or child. Rejecting the State’s contention that the provision was meant to keep in check rampant misuse of parole, the Court held that the provision was liable to be struck down for being violative of Article 14 of the Constitution. As stated in the judgment,.“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… .… 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.”.The unconstitutionality of the provision, the Bench held, flowed not only because it failed to pass the twin test of reasonable classification, but also from its manifest arbitrariness. The Court observed,. “It becomes clear that it (proviso in question) 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.”.The Court also added,.“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. ”.The ruling was passed while citing the avowed object of parole to enable the prison inmate to maintain continuity with family life and to enable him/her to develop an active interest in life. This object has also been incorporated in Rule 1(A) of the 1959 Prison Rules. The Court rendered the judgment after extensive consideration of various precedents including the Asfaq case, the Sunil Batra vs Delhi Administration case, S. Sant Singh vs Secretary, Home Department, and Bhikhabai Devshi .vs. State of Gujarat..Case Background .The constitutional validity of the proviso to Rule 19 (2) of the 1959 Rules was challenged by one Kanitlal Nandlal Jaiswal, a 68-year-old convict serving life imprisonment in the Nagpur Central Prison, who was denied parole by prison authorities on the ground that it was filed within a year of his earlier leave. Aggrieved by the same, Jaiswal challenged the constitutionality of the proviso, claiming it to be in violation of Articles 14 and 21 of the Constitution of India..Over the years, the proviso in question had been inserted (1989) and repealed (2007), before finally being re-inserted in 2012. Subsequently, the validity of the proviso was upheld in the case of Gajanan Babulal Bathulwar vs. State of Maharashtra and Ors by the High Court in 2014. The proviso was then again deleted in August 2016, before it was added again in April 2018. It was in view of the High Court’s 2014 ruling in the Gajanan Babulal case that the Division Bench referred the issue to the larger Bench, in view of further dimensions of the challenge posed by the petitioner..What the Bombay High Court Full Bench held.The Full Bench observed that the 2014 Gajanan Babulal case had upheld the constitutionality of an identical proviso on a finding that it did not violate Article 21 since parole was not an absolute right. While this was the case, the earlier Bench passed the ruling opining that the State was entitled to impose curbs on the right to parole, to ensure that it is not misused..However, the Full Bench noted,.“… 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.”.As noted before, the Court eventually concluded that, in view of the limited right of a prisoner to parole, the proviso in question was liable to be struck down as unconstitutional for violation of Article 14..Over the course of the judgment, the High Court also pointed out that there was an inconsistency between the Parole Rules framed by the state of Maharashtra, including the proviso that was challenged. Under Rule 19(2)(A), a prisoner can be considered eligible for parole after completion of six months of actual imprisonment counted from his/her last return either from furlough or regular parole. Whereas, under the proviso in question to Rule 19 (2), parole application of a particular class of prisoner cannot be considered till the expiry of one year from his/her last emergency or regular parole..This incongruity strengthened to Court’s conclusion that the rule had been inserted arbitrarily. In light of the repeated introduction and deletion of the proviso, the Court went on to observe that the State itself 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.”.In view of these observations, the Court proceeded to remark,.“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… 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.”.It also added that it was on the State authorities to prevent any misuse of the parole facilities and that the parole rights of prisoners cannot be curbed only citing this ground..“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 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.”.The Court, therefore, concluded,.“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….… 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.“.Senior Counsel Sunil Manohar along with Advocates Adwait S Manohar and Sonali Khobragade appeared for the petitioner Public Prosecutor SY Deopujari and Additional Public Prosecutor MJ Khan, appeared for the respondents, Divisional Commissioner, Nagpur and Superintendent of Nagpur Central Prison.[Read Judgement dated September 13, 2019]