REFORMING A CRIMINAL
Latitude Given By Constitution Cannot Be Caged In Form Of Inflexible Guidelines : SC
While speaking out most strongly, strictly and sagaciously coming out most vocally in favour of reformatory approach of prisoners sentenced to long years of imprisonment, the Apex Court in a most learned, laudable, landmark and latest judgment titled Joseph vs The State of Kerala & Ors in Writ Petition (Criminal) No(s) 520 of 2022 and cited as 2023INSC843 in the exercise of its criminal original jurisdiction that was pronounced as recently as on September 21, 2023 has spared no words to openly reprimand a retrograde Kerala policy practice and held in no uncertain terms that typecasting convicts through inflexible guidelines based on crimes committed several years ago undermines their reformative potential, and can crush the life force of such individuals. When such an eminent jurist like Justice VR Krishna Iyer who is a former Judge of the Supreme Court can believe most stoutly in “Operation Valmiki” then why can’t we and our society as a whole believe in the same? Justice Iyer had hit the nail on the head when he had said a long time back that, “I believe in Operation Valmiki because every saint has a past and every sinner has a future.” It is in this context that we definitely need to welcome this latest judgment by which the Apex Court has ordered the release of a man who had been imprisoned for 26 years after his conviction for robbing and murdering his sister-in-law.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice S Ravindra Bhat for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Dipankar Datta sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner, currently serving a life imprisonment sentence for a crime committed in 1996, punishable under Sections 302 and 392 of the Indian Penal Code (hereafter “IPC”) approaches this court seeking to enforce his right under Article 32 of the Constitution of India. He seeks appropriate direction to the state government, to prematurely release him, having been in custody (i.e., actual imprisonment) for over 26 years, and served a sentence of over 35 years (including over 8 years of remission earned).”
To put things in perspective, the Bench envisages in para 2 that, “It was alleged that on 16.09.1994, the petitioner had gone to his sister-in-law’s (the deceased victim) place of work, and on the false pretext that her mother was seriously ill and had been admitted to the hospital, taken her away with the permission of the in-charge of the convent where she worked. The prosecution case was that he had her walk along the railway line and at a desolate place, allegedly raped and robbed her of the ornaments she was wearing, before laying her on the tracks to be run over by a passing train.”
As it turned out, the Bench enunciates in para 3 that, “The petitioner was arrested on 09.10.1994 in connection with the case and remained in custody till the trial court by judgment dated 23.03.1996 passed by the Sessions Court, Thrissur in S.C. No. 73/1995. acquitted him of all charges on 23.03.1996. The High Court by judgment dated 06.01.1998 passed by the Kerala High Court in Crl. A. No. 511/1996 reversed the acquittal, and convicted the petitioner by its judgment dated 06.01.1998 for the offences punishable under Section 302, 376 and 392 IPC. The High Court sentenced him to life imprisonment for the offence under Section 302, and rigorous imprisonment of 7 years on each count of Section 376 and 392 IPC, which were to run concurrently. This court by judgment dated 27.04.2000 passed by this Court in Crl. A. No. 656/1998, however, on 27.04.2000 set aside the conviction under Section 376 IPC and confirmed the conviction and sentence under Sections 302 and 392 IPC only.”
As we see, the Bench discloses in para 4 that, “Pursuant to an order of this court, the respondent-state filed an affidavit indicating the computation of his period of sentence undergone, the status of his plea for remission to be granted, as well as filed the state’s various remission policies (as amended from time to time). The petitioner completed 1 year 5 months and 10 days of custody as an undertrial, before his acquittal by the trial court. After his conviction by the High Court, he surrendered to the sentence on 28.01.1998, and remained in custody thereafter. On 13.08.2010, he completed 14 years of actual imprisonment (including the time spent as an undertrial). And on 13.08.2016, he completed 20 years of actual imprisonment. The custody certificate produced in his writ petition, confirms that he completed actual imprisonment of 25 years 9 months and 26 days on 07.06.2022, (i.e., he completed 25 years actual imprisonment on 13.08.2021). However, in terms of the state’s counter affidavit, as on 31.01.2023, he completed 25 years 10 months 3 days of actual imprisonment and has earned 8 years 4 months and 16 days in remission. Regardless of the arithmetical inconsistencies, it is not contested that he has completed over 26 years of actual imprisonment.”
Do note, the Bench notes in para 7 that, “On 01.09.2022, the state government rejected for the third time, the Advisory Board’s recommendation to release the petitioner. Aggrieved, the petitioner has preferred the present writ petition.”
Most remarkably, the Bench propounds in para 28 that, “To issue a policy directive, or guidelines, over and above the Act and Rules framed (where the latter forms part and parcel of the former), and undermine what they encapsulate, cannot be countenanced. Blanket exclusion of certain offences, from the scope of grant of remission, especially by way of an executive policy, is not only arbitrary, but turns the ideals of reformation that run through our criminal justice system, on its head. Numerous judgments of this court, have elaborated on the penological goal of reformation and rehabilitation, being the cornerstone of our criminal justice system, rather than retribution. The impact of applying such an executive instruction/guideline to guide the executive’s discretion would be that routinely, any progress made by a long-term convict would be rendered naught, leaving them feeling hopeless, and condemned to an indefinite period of incarceration. While the sentencing courts may, in light of this court’s majority judgment in Sriharan (supra), now impose term sentences (in excess of 14 or 20 years) for crimes that are specially heinous, but not reaching the level of ‘rarest of rare’ (warranting the death penalty), the state government cannot – especially by way of executive instruction, take on such a role, for crimes as it deems fit.”
Most commendably, the Bench expounds in para 31 that, “The latitude the Constitution gives to the executive, under Articles 72 and 162, in regard to matters such as remission, commutation, etc, therefore, cannot be caged or boxed in the form of guidelines, which are inflexible.”
Most significantly, the Bench points out in para 33 holding that, “Classifying – to use a better word, typecasting convicts, through guidelines which are inflexible, based on their crime committed in the distant past can result in the real danger of overlooking the reformative potential of each individual convict. Grouping types of convicts, based on the offences they were found to have committed, as a starting point, may be justified. However, the prison laws in India – read with Articles 72 and 161 – encapsulate a strong underlying reformative purpose. The practical impact of a guideline, which bars consideration of a premature release request by a convict who has served over 20 or 25 years, based entirely on the nature of crime committed in the distant past, would be to crush the life force out of such individual, altogether. Thus, for instance, a 19 or 20 year old individual convicted for a crime, which finds place in the list which bars premature release, altogether, would mean that such person would never see freedom, and would die within the prison walls. There is a peculiarity of continuing to imprison one who committed a crime years earlier who might well have changed totally since that time. This is the condition of many people serving very long sentences. They may have killed someone (or done something much less serious, such as commit a narcotic drug related offences or be serving a life sentence for other non-violent crimes) as young individuals and remain incarcerated 20 or more years later. Regardless of the morality of continued punishment, one may question its rationality. The question is, what is achieved by continuing to punish a person who recognizes the wrongness of what they have done, who no longer identifies with it, and who bears little resemblance to the person they were years earlier? It is tempting to say that they are no longer the same person. Yet, the insistence of guidelines, obdurately, to not look beyond the red lines drawn by it and continue in denial to consider the real impact of prison good behavior, and other relevant factors (to ensure that such individual has been rid of the likelihood of causing harm to society) results in violation of Article 14 of the Constitution. Excluding the relief of premature release to prisoners who have served extremely long periods of incarceration, not only crushes their spirit, and instills despair, but signifies society’s resolve to be harsh and unforgiving. The idea of rewarding a prisoner for good conduct is entirely negated.”
Most forthrightly, the Bench points out in para 34 that, “In the petitioner’s case, the 1958 Rules are clear – a life sentence, is deemed to be 20 years of incarceration. After this, the prisoner is entitled to premature release. (See also this court’s order dated 11.10.2018 in Criminal Appeal No. 276-278/2010). The guidelines issued by the NHRC pointed out to us by the counsel for the petitioner, are also relevant to consider – that of mandating release, after serving 25 years as sentence (even in heinous crimes). At this juncture, redirecting the petitioner who has already undergone over 26 years of incarceration (and over 35 years of punishment with remission), before us to undergo, yet again, consideration before the Advisory Board, and thereafter, the state government for premature release – would be a cruel outcome, like being granted only a salve to fight a raging fire, in the name of procedure. The grand vision of the rule of law and the idea of fairness is then swept away, at the altar of procedure – which this court has repeatedly held to be a “handmaiden of justice”.”
It is worth noting that the Bench notes in para 35 that, “Rule 376 of the 2014 Rules prescribes that prisoners shall be granted remission for keeping peace and good behaviour in jail. As per the records produced by the State, the petitioner has earned over 8 years of remission, thus demonstrating his good conduct in jail. The discussions in the minutes of the meetings of the Jail Advisory Board are also positive and find that he is hardworking, disciplined, and a reformed inmate. Therefore, in the interest of justice, this court is of the opinion, that it would be appropriate to direct the release of the petitioner, with immediate effect. It is ordered accordingly.”
Finally, the Bench concludes by holding in para 36 that, “The writ petition, thus, stands allowed in the above terms. Pending applications, if any, are disposed of.”
In sum, we thus see that the Apex Court has made it indubitably clear that latitude given by Constitution cannot be caged in the form of inflexible guidelines. In the fitness of things, the prisoner is thus set free who was in prison for a very long time. When Centre can be so large hearted to a Pakistani army invader general like late Gen Pervez Musharraf who even threatened to nuke India and heaped Kargil war on us in which we lost hundreds of soldiers and master minded so many terror attacks also and hailed terrorists as freedom fighters yet Centre welcomed him within few months in 1999 to accord him a grand reception and many big media houses welcomed him and even went to the extent of honouring him grandly then why can’t we to say the least demonstrate an iota of kindness for our very own people who are Indians and give them at least one opportunity to reform, rehabilitate and return to the national mainstream by which not only they but their entire family especially those who are wholly dependent will benefit immensely? Centre must definitely ponder on it and waste no time in amending laws accordingly!