Supreme Court Shocked By UP Prison Secretary Citing Model Code Of Conduct As Excuse For Not Deciding Prisoner's Remission

The Supreme Court on Monday (August 12) directed the Principal Secretary of the Uttar Pradesh Prisons Administration Department to place on affidavit his stance that the Chief Minister Secretariat refused to accept a file regarding a convict's permanent remission plea citing Model Code of Conduct (MCC).

The Court on May 13, 2024 had stated that MCC will not come in the way of deciding remission.

“He is brazenly saying that notwithstanding the order of this Court on the 13th May they (CM Secretariat) waited till the Code of Conduct was over. They don't attach any value to the orders of the Court. And they are dealing with issue of human liberty”, Justice Abhay Oka remarked.

A bench of Justice Abhay Oka and Justice Augustine George Masih questioned the Principal Secretary Rajesh Kumar Singh regarding the non-compliance of Court orders to decide remission pleas. The Principal Secretary appeared before the Court via video conference, following a direction issued by the Court last week.

In its order, the Supreme Court noted the lack of a satisfactory explanation from the Principal Secretary for the prolonged delay. The Court observed, “Mr. Rajesh Kumar appears as per our order…He has hardly any explanation to offer for the long delay and now he is giving excuses that the file is pending before the competent authority. What is shocking is the response of Mr. Rajesh Kumar...He states that notwithstanding the order dated 13th May 2024 passed by this Court making it very clear that the Code of Conduct will not come in the way of the state considering the grant of permanent remission, he states that the file forwarded to the Secretariat of the Chief Minister was not accepted…Ultimately the file was sent to the secretariat of the Chief Minister only after the expiry of Code of Conduct.”

The Court directed the Principal Secretary to file an affidavit detailing the names of the officers in the CM Secretariat who refused to accept the file. Additionally, the affidavit must also state whether any effort was made by the Principal Secretary to represent before the concerned officers that the government was bound by the Court's order dated May 13, 2024.

During the proceedings today, Justice Oka asked, “How is it that in every case, you are defying our orders? Every time we direct the State of UP to consider a case for premature release, you don't comply within the time fixed.”

In response, Principal Secretary Singh explained that the files of all relevant cases were currently before the competent authority. He stated that the concerned authority was out of station and she is likely to return today after which the matter will be addressed.

Singh further informed the Court that pursuant to its order dated April 10, 2024, the department received the proposal for the release of petitioner Kuldeep (in Writ Petition 129 of 2024) on June 15, 2024 from the District Magistrate. The file was sent to the concerned Minister on July 5, 2024, forwarded to the Chief Minister on July 11, 2024, and finally sent to the Governor on August 6, 2024, he said.

The Court questioned why the DM's report took two months after the order of April 10, 2024. “The state does not even do the courtesy of filing for extension of time. This will not do”, Justice Oka said.

Justice Oka then questioned who would compensate the prisoner for the delay in processing the remission plea. “Suppose a person is granted premature release, who is going to compensate him for this delay if he is found entitled to premature release?”

Regarding another case (Writ Petition 134 of 2022) where the petitioner is also seeking remission, the Court had passed the order on April 1, 2024 and Singh informed the Court that the proposal had been received by the department on April 16, 2024, but during that time, the MCC had been imposed, which caused the delay.

Justice Oka countered, “How code of conduct is applicable? On 13^th May we have directed that notwithstanding the Code of Conduct you decide.”

Singh said that the Chief Minister's Secretariat made a query that it should be referred to the ECI, and the ECI did not respond. He added that the Chief Minister's Secretariat was not receiving the file for remission.

To this, the bench asked Singh to file an affidavit setting out the names of the concerned officers who refused to accept the file. The Court noted that till date, the UP government has not decided the remission plea of petitioner Ashok Kumar.

“Before we issue a notice of contempt to the appropriate officers of the state government, we direct Mr. Rajesh Kumar to file an affidavit setting out what he has told us orally. Necessary correspondence made to the Secretariat of the Chief Minister in connection with petitioner in Writ Petition 134 of 2022 shall be also placed on the record”, the Court said.

The affidavit has to be filed by August 14, 2024 and the Court kept the matter on August 20, 2024.

The Supreme Court last year noted that UP's inconsistent application of its remission policy was problematic and held that the State must adhere to its established statutes, rules, and policies for remission as any deviation could disadvantage prisoners who lack resources or awareness. In 2022, the Court had directed that the authorities must consider remission once a convict becomes eligible without a formal application from the prisoner for considering remission.

Case no. – WP (Crl.) No. 129/2024

Case Title – Kuldeep v. State of UP and Ors. 

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