Supreme Court sets aside remission condition that convict should "behave decently" for 2 years

The Supreme Court on Monday set aside a condition imposed by the Gujarat government while granting remission (early release from prison) to a murder convict, by which the convict was told to "behave decently" for two years after his release from jail [Mafabhai Motibhai Sagar vs State of Gujarat & Ors].

A Bench of Justices Abhay S Oka and Augustine George Masih observed that such a condition was liable to be struck down for being too subjective and manifestly arbitrary.

The Court explained that the concept of decency keeps changing from time to time and is undefined in penal or procedural law.

Therefore, imposing such a condition for the grant of remission left room for the cancellation of remission at the whims and fancies of the executive, the Court said.

"Such a condition while granting remission becomes too subjective. Putting such a vague condition while exercising the power under subsection (1) of Section 432 of the CrPC will give a tool in the hands of the executive to cancel the remission at its whims and fancies. Therefore, such a condition is arbitrary and will be hit by Article 14 of the Constitution of India. Such a condition cannot be imposed as it will defeat the very object of remitting the sentence ... If a condition imposed is unclear or ambiguous, it can have different meanings ... it becomes very difficult to enforce such conditions," the October 21 ruling said.

The Court added that remission conditions that are arbitrary or violate fundamental rights would stand vitiated.

"If the conditions imposed are arbitrary, the conditions will stand vitiated due to violation of Article 14. Such arbitrary conditions may violate the convict's rights under Article 21," the Court said.

It, therefore, quashed this remission condition.

The order was passed while disposing of an appeal filed by the convict against his conviction and life sentence.

During the pendency of the appeal, the Gujarat government granted the convict remission.

In doing so the State had imposed certain remission conditions. One was that the convict behave decently for two years, which was set aside by the top court.

The second condition set by the State was that the convict cannot engage in any cognisable crime or do any act that hurts people or property.

The Supreme Court did not set aside this second condition, but clarified that mere allegations that the convict breached this condition should not be taken at face value to lead to the cancellation of his remission.

The Court explained that the principles of natural justice have to be followed and a convict must be heard and allowed to respond before take such a drastic step.

"If the order granting remission is to be cancelled or revoked, it will naturally affect the liberty of the convict ... Therefore, this drastic power cannot be exercised without following the principles of natural justice. A show cause notice must be served on the convict before taking action to withdraw/cancel remission. The show cause notice must contain the grounds," it observed.

The Court added that a minor breach of remission conditions cannot be grounds to cancel remission.

"Registration of a cognizable offence against the convict, per se, is not a ground to cancel the remission order. The allegations of breach of condition cannot be taken at their face value ... Every case of breach cannot invite cancellation of the order of remission ... A minor or a trifling breach cannot be a ground to cancel remission. There must be some material to substantiate the allegations of breach," the Court explained.

The Court proceeded to partly allow the appeal after recording these clarifications.

Senior Advocate Rauf Rahim appeared for the convict, one Mafabhai Sagar. Advocate Swati Ghildiyal appeared for the State of Gujarat.

[Read judgment]