Kerala HC Full Bench Quashes Government Order That Allowed Premature Release Of 209 Prisoners [Read Judgment]

The High Court of Kerala quashed a 2011 state government order which directed premature release of 209 prisoners who had then completed 10 years or more in jail.

The full bench of the High Court comprising Chief Justice Hrishikesh Roy, Justice K. Abraham Mathew, and Justice AK Jayasankaran Nambiar also directed that the proposal for premature release of 209 Prisoners shall be examined afresh within a period of 6 months.

In 2011, the Government of Kerala invoking his powers under Article 161 of Constitution of India had ordered premature release of 209 Prisoners who completed 10 years imprisonment and above. Many writ petitions were filed challenging this move by the state government.

During the hearing, the court had called for the files of the state government to examine the procedure that was followed while issuing the government order. Perusing these files, the bench noted that the selection of prisoners for premature release was based on the finding by the government that the jails in the state where overcrowded and it was getting difficult to provide the minimum required facilities for the prisoners. The files also revealed that retention of prisoners in jail was getting to be expensive for the state and there was no necessity to retain prisoners beyond 10 years when they have been reformed and threat to society did not appear probable.

The court particularly noted that there was no consideration of the case of each prisoner vis-à-vis special circumstances that called for a departure from the mandate of 433 of the CRPC. "Our scrutiny of the files reveal that only material available before the Council of Ministers was the Cabinet note, that was put up together with the statement showing the actual period of imprisonment undergone by the Prisoners, the gist of the case that led to the conviction, and remarks showing whether they had been recommended for a premature release by the police authorities, probationary officers or both and whether or not they fell within the excluded categories of prisoners as per the guidelines formulated by the state government. There is nothing to suggest that the Council of Ministers were informed of the particular circumstances that warranted a recommendation for premature release of a Prisoner who had an adverse report from either the police authorities or the probationary officer and a favourable report from the other. Similarly exceptional factors that were taken into account for exempting the prisoners concerned from the rigours of 433A of CRPC was also not made available before the Council of Ministers or for that matter before the Governor."

The bench then observed: "In our view, the said lapses on the part of the state government would vitiate the impugned government order and the approval granted to it by the Governor, since the exercise of constituent power under Article 161 of our Constitution by high constitutional functionaries must take note of the effect of the decision on the family of the victims, the society as a whole and precedent it sets for the future."

The bench added that it is refraining from issuing a direction to immediate re-incarceration solely because those prisoners are not parties to the writ proceedings. However, the court clarified: "We make it clear that if no decision is taken by the functionaries under article 161 within the said period of six months, it will be deemed that there is no exercise of power under article 161 in favour of prisoners concerned and steps shall be taken to re incarcerate such prisoners for serving out the remainder of their sentence." 

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