Bombay HC Refuses To Quash High Power Committee's Decision Classifying Categories Of Prisoners For Temporary Release Due To Covid-19 [Read Judgment]

The Bombay High Court on Wednesday, refused to quash the decision of the High Power Committee constituted by the State for decongestion of prisons due to the threat of Covid-19, to classify categories of prisoners who will be released on emergency parole.

However, the Court reiterated that the amended parole rule which states that convicts whose maximum sentence is above 7 years shall be considered for release on emergency parole if the convict has returned to prison on time on last 2 releases, is applicable only if the convict has been released on parole or furlough two times.

Division bench of Chief Justice Dipankar Datta and Justice Madhav Jamdar was hearing a PIL filed by National Alliance For People's Movement and its convener activist Medha Patkar seeking quashing of the decision of the High Powered Committee (HPC) to the extent of Clauses (iii), (iv), (vii). While Justice Jamdar authored the 59-page judgment, Chief Justice Dipankar Datta penned a concurring judgment.

Advocate SB Talekar appeared on behalf of the petitioners and submitted that the HPC has exceeded its jurisdiction and the classification made for release of prisoners is not reasonable classification. According to him, the classification which the HPC has made fails to satisfy two conditions viz. the classification is required to be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group, and that the differentia must have a rational relation to the object sought to be achieved; therefore, it violates Article 14 of the Constitution of India.

The HPC was constituted by an order dated March 23, 2020 of the Supreme Court for the purpose of ensuring maximum possible distancing among the prisoners including the undertrials. Excluding certain categories of prisoners or under-trials for emergency release in view of the pandemic caused by Covid-19, is not reasonable classification as there is no nexus between the basis of classification and the object for which the HPC was constituted, Talekar argued.

Furthermore, he referred to Clause 8(iii) of the HPC's minutes of meeting dated March 25, 2020 requiring that the prisoners should have been released on two occasions earlier either on parole or furlough for the purpose of getting benefit of emergency parole and contended that the new rule is causing hardship, as there are several convicted prisoners who are otherwise entitled for emergency release but are deprived of the same in view of the said requirement.

On the other hand, Public Prosecutor Deepak Thakare contended that the orders of the HPC are not arbitrary. He referred to the decision of the Supreme Court dated March 23, 2020 and April 13, 2020 and submitted that the apex court has specifically clarified that the State and Union Territories have not been directed to compulsorily release the prisoners from their respective prisons and the only purpose of those directions was to ensure the State/Union Territories to assess the situation in their respective prisons having regard to the outbreak of the present pandemic in the country and release certain prisoners and for that purpose, to determine the category of prisoners to be released.

He submitted that the Supreme Court has left it open to the HPC to determine the category of prisoners to be released.

After hearing all submissions, Justice Jamdar noted-

"The Supreme Court in the said order specifically directed that it is for the HPC to determine the category of prisoners who should be released depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged and is facing trial or any other relevant factor which it may consider appropriate."

Moreover, the submission of Mr. Talekar that Section 303 is held to be unconstitutional and, therefore, classifying the same for not considering such prisoners for release on emergency parole is also without any substance as by corrigendum dated May 18, 2020, the HPC has specifically clarified that although Section 303 of the IPC is held to be unconstitutional, the accused who are under going sentence of imprisonment for life are charged of subsequent offence of committing murder; hence, are habitual offenders and therefore, shall not be considered for emergency bail/parole, Court said.

Court examined various judgments of Supreme Court and High Court including, apex court's judgments in KR Lakshman and Others Vs. Karnataka Electricity Board and Ors. and Arun Kumar and Others Vs. Union of India and Ors.

Justice Jamdar observed-

"It is very clear that the recommendations of the HPC are not fetters on the competent Court for considering regular bail applications. The HPC was only considering classes of prisoners who can be released on temporary bail/parole for the purposes of de-congesting the prisons."

Noting that the decision of the coordination bench in the case of Milind Ashok Patil & Ors Vs State Of Maharashtra and Ors is applicable to the category of convicts whose case falls in the criteria laid down therein, Court observed-

"State government for the purpose of reducing overcrowding has opened temporary prisons at about 36 locations and presently about 2,597 prisoners are occupying such temporary prisons and the process of transferring some more prisoners to the temporary prisons is in progress. Thus, it is clear that the respondents have already taken various steps as well as they are taking steps for reducing overcrowding in the prisons."

Concurring with Justice Jamdar's judgment, Chief Justice Datta wrote-

"The contentions of Mr. Talekar, though attractive at first blush, on deeper examination pale into insignificance."

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