NATIONAL ALLIANCE FOR PEOPLE’S MOVEMENTS & ORS. versus THE STATE OF MAHARASHTRA & ORS. on 22 September 2020

[2020] 8 S.C.R. 997

NATIONAL ALLIANCE FOR PEOPLE’S MOVEMENTS & ORS.

v.

THE STATE OF MAHARASHTRA & ORS.

(Special Leave Petition (Criminal) No. 4116 of 2020)

SEPTEMBER 22, 2020

[S. A. BOBDE CJI, A. S. BOPANNA ANDV. RAMASUBRAMANIAN, JJ.]

Prisoners – Pandemic – Novel Coronavirus (Covid-19) –Decongestion of prisons – The Supreme Court had taken note ofthe pandemic situation and registered a Suo Motu Writ Petition (Civil)No. 1/2020 and in that context also referred to the decision takenby the government of India to issue an advisory regarding socialdistancing – The Court directed that each State/Union Territory shallconstitute a High Powered Committee (HPC), to determine whichclass of prisoners can be released on parole or an interim bail forsuch period as may be thought appropriate – Pursuant to thedirection, a High-Powered Committee was constituted in respect ofthe prisons in the State of Maharashtra – As per the guidelines, theCommittee has classified the inmates of the prisons, broadly intothree categories, viz. (i) undertrial prisoners/convicted persons whoare facing trial or convicted to the maximum punishment of 7 yearsor less, (ii) The convicted persons whose sentence is above 7 yearsand (iii) The undertrial prisoners or convicted persons who arebooked for serious economic offences/ bank scams and offencesunder Special Acts such as MCOC, PMLA etc. – The petitionersalleged discrimination in categorisation – The High Court held thatthe decision of HPC does not call for interference except to theextent of observations that were made in paragraph 36 of the order– On appeal, held: The said categorisation cannot be consideredas unreasonable since at the first instance, the categorisation isrequired by the Court for grant of interim bail if such undertrial/convicted person is seeking bail purely on taking benefit of thenotification issued pursuant to such decision taken by the HPC –The exclusion made has a reasonable basis and cannot be termedarbitrary – The present methodology for grant of the interim bail iswith the intention to avoid overcrowding in the unprecedented

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Acircumstance and the grant of bail in the present circumstances isan additional benefit to such persons – In that circumstance whathas been curtailed by the HPC by excluding certain categories isonly with a view to deny the benefit to certain category of jail inmateswho are charged with serious offences which as an adverse effecton the society at large though the length of the punishment that canBbe imposed may be lesser – Such of those persons charged underthe special enactments or convicted for a period, more than 7 yearsin any event if they are not otherwise disentitled to bail in the normalcircumstance could still seek bail in accordance with law – All thatthe HPC has denied them is the benefit of seeking interim bail onlyCon the ground that they are entitled to be released in view of theCovid-19 situation and no other legal right has been denied – TheHigh Court was accordingly justified in its conclusion.

Dismissing the petition, the Court

Conclusion

Dismissing the petition, the Court

HELD: 1. The very purpose of directing each of the States/DUnion Territories to constitute a High-Powered Committee isthat the HPC taking note of the subsisting position in such Statewill take a decision in the matter as the HPC will have thewherewithal to secure all details and take a decision. If the saidaspect is kept in view, it is noticed that by the guideline datedE25.03.2020 the Committee in question has categorised theundertrials/convicted persons by the nature of the crime and thelength of the punishment which will take care of the severity inthe process of consideration. In that regard, insofar as theundertrial/convicted persons charged under the common law,namely, the Indian Penal Code; they are classified into twoFcategories i.e. category-(i) as punishment below 7 years andcategory-(ii) as punishment above 7 years so that the considerationcould be in that manner. The Committee has thought it fit toseparately classify the undertrials/convicted persons who arecharged under the Special Enactments irrespective of theGduration of imprisonment notwithstanding the fact that thepunishment imposed could be less than 7 years. In that regard,what has weighed with the HPC is that such enactments providefor additional restrictions on grant of bail in addition to thoseunder the Criminal Procedure Code. The said categorisation inview of this Court cannot be considered as unreasonable since atH

NATIONAL ALLIANCE FOR PEOPLE’S MOVEMENTS & ORS.v. THE STATE OF MAHARASHTRA & ORS.

the first instance, based on the categorisation made aconsideration is required by the Court for grant of interim bail ifsuch undertrial/convicted person is seeking bail purely on takingbenefit of the notification issued pursuant to such decision takenby the HPC. The exclusion made has a reasonable basis andcannot be termed arbitrary. [Para 11][1004-F-H; 1005-A-B]

2. As already indicated the present methodology for grantof the interim bail is with the intention to avoid overcrowding inthe unprecedented circumstance and the grant of bail in thepresent circumstances is an additional benefit to such persons.In that circumstance what has been curtailed by the HPC byexcluding certain categories is only with a view to deny the benefitto certain category of jail inmates who are charged with seriousoffences which has an adverse effect on the society at large thoughthe length of the punishment that can be imposed may be lesser.Such of those persons charged under the special enactments orconvicted for a period, more than 7 years in any event if they arenot otherwise disentitled to bail in a normal circumstance couldstill seek for bail in accordance with law and cannot treat thepandemic as fortuitous circumstance to secure bail to which theywere otherwise not entitled to in law by claiming equal treatment.All that the HPC has denied them is the benefit of seeking interimbail only on the ground that they are entitled to be released onbail in view of the Covid-19 situation and no other legal right hasbeen denied. Therefore, in the circumstance where the presentconsideration for bail is not provided under a statute but is madeavailable based on the order passed by this Court and further,when a known criteria is formulated by the HPC, which had allmaterials before it, an interference with the same in a petition ofthe present nature in any event would not have arisen and theHigh Court was accordingly justified in its conclusion. [Para12][1005-C-G]

3. Having stated so it is necessary to indicate that the causefor grievance may arise for an individual undertrial/convictedprisoner only if such person has been discriminated as againstthe prisoner in the same category for which the benefit has beenprovided by the categorisation made by the HPC. That apart theintention being to decongest the prisons, as a first step the release AB

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Aof the prisoners based on the impugned guidelines, held to beunflawed would be made. If, despite the release of the undertrial/convicted prisoners in the categories presently made does notachieve the purpose and the fact that additional prisons are setup also does not suffice and in that context if any modificationwith regard to the categories made by HPC is necessary; certainlyBit would be open for the HPC to take note of the same and applytheir mind to modify its guidelines in that regard. [Para 14][1006-B-D]

The State of West Bengal v. Anwar Ali Sarkar AIR (39)1952 SC 75 : [1952] SCR 284; Arun Kumar & Ors v.CUnion of India & Ors. (2007) 1 SCC 732 : [2006] 6Suppl. SCR 290; K.R. Lakshman & Ors. v. KarnatakaElectricity Board (2001) 1 SCC 442 : [2000] 5 Suppl.SCR 535 – referred to.

CRIMINAL APPELLATE JURISDICTION: Special Leave EPetition (Criminal) No. 4116 of 2020.

From the Judgment and Order dated 05.08.2020 of the High Courtof Judicature at Bombay in PIL-CJ-LD-VC-NO. 44 of 2020.

SB Talekar, PB Suresh, Vipin Nair, Karthik Jayashankar, SughoshSubramanium, Ms. Madhavi Ayyappan, Advs. for the appearing parties.FThe following Judgment of the Court was delivered:

JUDGMENT

1. The petitioners herein were before the High Court of Judicatureat Bombay claiming to be in Public Interest (PIL-CJ-LD-VC No.44/2020) seeking that the decision of the High Powered Committee (‘HPC’Gfor short) dated 25.03.2020 to the extent of Clauses (iii), (iv) and (vii) ofparagraph 8, decisions/minutes of HPC meeting dated 11.05.2020excluding certain categories of offences provided in paragraph 5(i) and5(ii) for the purpose of grant of interim bail and corrigendum dated18.05.2020 of the Minutes of the Meeting of HPC dated 11.05.2020 toHthe extent of clarification that the class and/or category of offences determined by the HPC for temporary release be not read as a directionmade by it for mandatory release of prisoners falling in that category orclass and a further clarification that the case of every prisoner beconsidered on case to case basis for deciding the temporary release ofsuch prisoners. The petitioners had also sought for a direction to therespondents to release the prisoners convicted for life imprisonmentwithout insisting that they have been released in the past at least twice,either on furlough or parole.

2. The High Court on making a detailed consideration has arrivedat the conclusion that the decision of the HPC does not call forinterference except to the extent of the observations that were made inparagraph 36 of the order. The petitioners, therefore, claiming to beaggrieved are before this Court in this petition.

3. We have heard the learned counsel for the petitioners andperused the petition papers.

4. Though a detailed consideration has been made by the HighCourt whereunder separate concurring reasons are given by the learnedJudges on the Division Bench, it is necessary to notice that the presentissue has arisen only on the limited scope for grant of interim bail/parole/furlough due to the unforeseen circumstance of the pandemic, namely,Novel Coronavirus (Covid-19) which requires decongesting of prisonswith the intention of social distancing to be maintained so as to preventthe spread of virus. It is in that circumstance, this Court while registeringa Suo Moto Writ Petition (Civil) No.1/2020 had taken note of thepandemic and in that context also referred to the decision taken by theGovernment of India to issue an advisory regarding social distancing. Inthat background, having taken note that there are 1339 prisons in thiscountry and approximately 4,66,084 inmates are lodged in such prisonshad adverted to the occupancy rate which is high and, therefore,considering the prisons to be overcrowded had issued certain directionsto ensure decongesting and maintain social distance.

5. At the first instance this Court through the order dated16.03.2020 had directed notice to be issued to all the stakeholders in thisregard so as to suggest immediate measures which should be adoptedfor the medical assistance to the prisoners in all jails and the juvenileslodged in the Remand Homes for protection of their health and welfare.Subsequently, through the order dated 20.03.2020 this Court inter aliaissued the following directions:

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A“We direct that each State/Union Territory shall constitute a HighPowered Committee comprising of (i) Chairman of the State LegalServices Committee, (ii) the Principal Secretary (Home/Prison)by whatever designation is known as, (iii) Director General ofPrison(s), to determine which class of prisoners can be releasedon parole or an interim bail for such period as may be thoughtBappropriate. For instance, the State/Union Territory could considerthe release of prisoners who have been convicted or are undertrialfor offences for which prescribed punishment is up to 7 years orless, with or without fine and the prisoner has been convicted fora lesser number of years than the maximum.C

It is made clear that we leave it open for the High PoweredCommittee to determine the category of prisoners who should bereleased as aforesaid, depending upon the nature of offence, thenumber of years to which he or she has been sentenced or theseverity of the offence with which he/she is charged with and isDfacing trial or any other relevant factor, which the Committeemay consider appropriate.”

6. Pursuant to the direction, aHigh-Powered Committee wasconstituted in respect of the prisons in the State of Maharashtra, theState in respect of which the present issue has arisen.The HPC havingEdeliberated has issued the guidelines dated 25.03.2020 as formulated inits meeting. The Home Department, Government of Maharashtra hasnotified the same on 08.05.2020. As per the guidelines, the Committeehas classified the inmates of the prisons, broadly into three categories,viz (i) undertrial prisoners/convicted persons who are facing trial orconvicted to the maximum punishment of 7 years or less, (ii) the convictedFpersons whose sentence is above 7 years and (iii) the undertrial prisonersor convicted persons who are booked for serious economic offences/bank scams and offences under Special Acts such as MCOC, PMLA,MPID, NDPS, UAPA etc.

7. Thus, having classified the jail inmates to different categoriesGon such basis, considerationof the ‘nature of the offence’ and the ‘severityof offence’ has been indicated to be adopted as the yardstickwhileconsidering their case for grant of interim bail in such situation.Thepetitioners while assailing the said guidelines had alleged discriminationin the categorisation and also unreasonableness in imposing the conditionHof earlier release in respect of the convicted persons for the sentence of more than 7 years. It is relevant to notice that infact this Court throughthe order dated 23.03.2020 had permitted such broad classification forthe purpose of consideration.

8. On the contentions urged and the decisions cited before theHigh Court we are of the opinion that the High Court in fact hasappropriately adverted to the same and has not committed any error inarriving at its conclusion. In this regard we notice that the High Courthas aptly referred to the decision of this Court in the case of The Stateof West Bengal vs. Anwar Ali Sarkar (AIR (39) 1952 SC 75), ArunKumar & Ors vs. Union of India & Ors. (2007) 1 SCC 732 and K.R.Lakshman & Ors. vs. Karnataka Electricity Board (2001) 1 SCC442 wherein the circumstances when requirement of Article 14 of theConstitution is to be satisfied is considered in detail. It is articulatedtherein that equality before the law or the equal protection of laws doesnot mean identity or abstract symmetry of treatment and that reasonableclassification is permitted. In that background the High Court whileapproving the categorisation made by HPC has gathered the intention ofthe order dated 23.03.2020 passed by this Court in its correct perspective.

9. While arriving at such conclusion, in addition to the reasonsassigned by the High Court we cannot also lose sight of the fact that theentire right to claim such interim bail has arisen in the unprecedentedcircumstance of the pandemic and the consideration for interim bail isnot in the nature of a statutory right for bail based on other legalconsideration but is more in the nature of human right to safeguard thehealth. The provision for bail as otherwise provided in law in any casewould be considered by the competent courts if such right for bail ismade out before the competent court irrespective of the pandemic ornot. The present option provided is only as a solution to help decongestionand to avoid the spread of virus.At the same time the benefit granted insuch circumstance cannot be to the detriment of social order by releasingall categories of prisoners irrespective of the categorisation to be madedepending on the severity of the crime etc. The genesis for the presentclaim being the order passed by this Court in a Suo MotuWrit Petition, abalance was struck. As such, as noticed from the extracted portion ofthe order (supra),this Court had directed the constitution of the HPCconsisting of a senior High Court Judge and highly placed officials sothat an appropriate categorisation be made in each State dependant onthe circumstance arising therein. Further, the intention of this Court was A

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Anot that every undertrial or convicted prisoner is to be released irrespectiveof the nature of offence or severity thereof. The consideration was forthe purpose of decongesting the prisons so that social distancing couldbe maintained to avoid the spread of virus. In that circumstance theconsideration would certainly be different in each State/Union Territorydepending on the occupancy in the prison, the spread of virus, theBinfrastructure available and the need,if any, to release certain number ofprisoners so as to decongest.

10. The above noted intention is manifest in the subsequent orderdated 13.04.2020 passed by this Court, which reads as hereunder;

C“We are informed that the State of Bihar has not found itappropriate to release the prisoners for complete absence of anypatient suffering from coronavirus within the prisons and also forthe reason that the prisons are not overcrowded. Moreover, evenin one case the murder of a prisoner who was “accused” ofsuffering from coronavirus has been reported.D

We make it clear that we have not directed that States/Union Territories to compulsorily release the prisoners from theirrespective prisons. The purpose of our aforesaid order was toensure the States/Union Territories to assess the situation in theirprisons having regard to the outbreak of the present pandemic inEthe country and release certain prisoners and for that purpose todetermine the category of prisoners to be released.”

11. Therefore, the very purpose of directing each of the States/Union Territories to constitute a High-Powered Committee is that theHPC taking note of the subsisting position in such State will take a decisionFin the matter as the HPC will have the wherewithal to secure all detailsand take a decision. If the said aspect is kept in view, it is noticed that bythe guideline dated 25.03.2020 the Committee in question has categorisedthe undertrials/convicted persons by the nature of the crime and thelength of the punishment which will take care of the severity in theGprocess of consideration. In that regard, insofar as the undertrial/convictedpersons charged under the common law, namely, the Indian Penal Code;they are classified into two categories i.e. category-(i) as punishmentbelow 7 years and category-(ii) as punishment above 7 years so that theconsideration could be in that manner. The Committee has thought it fitto separately classify the undertrials/convicted persons who are chargedHunder the Special Enactments irrespective of the duration of imprisonment notwithstanding the fact that the punishment imposed could be less than7 years. In that regard, what has weighed with the HPC is that suchenactments provide for additional restrictions on grant of bail in additionto those under the Criminal Procedure Code. The said categorisation inour view cannot be considered as unreasonable since at the first instance,based on the categorisation made a consideration is required by the Courtfor grant of interim bail if such undertrial/convicted person is seekingbail purely on taking benefit of the notification issued pursuant to suchdecision taken by the HPC. The exclusion made has a reasonable basisand cannot be termed arbitrary.

12. As already indicated the present methodology for grant of theinterim bail is with the intention to avoid overcrowdingin theunprecedented circumstance and the grant of bail in the presentcircumstances is an additional benefit to such persons. In that circumstancewhat has been curtailed by the HPC by excluding certain categories isonly with a view to deny the benefit to certain category of jail inmateswho are charged with serious offenceswhich has an adverse effect onthe society at largethough the length of the punishment that can beimposed may be lesser. Such of those persons charged under the specialenactments or convicted for a period, more than 7 years in any event ifthey are not otherwise disentitled to bail in a normal circumstance couldstill seek for bail in accordance with law and cannot treat the pandemicas fortuitous circumstance to secure bail to which they were otherwisenot entitled to in law by claiming equal treatment. All that the HPC hasdenied them is the benefit of seeking interim bail only on the ground thatthey are entitled to be released on bail in view of the Covid-19 situationand no other legal right has been denied. Therefore, in the circumstancewhere the present consideration for bail is not provided under a statutebut is made available based on the order passed by this Court and further,when a known criteria is formulated by the HPC, which had all materialsbefore it, an interference with the same in a petition of the present naturein any event would not have arisen and the High Court was accordinglyjustified in its conclusion.

13. That apart, keeping in perspective the object with which theinterim bail was ordered to be considered for the purpose of avoidingovercrowding, the High Court has taken note of the factual position thatas on 24.07.2020, as per details furnished, 10338 prisoners were releasedon interim bail/parole and presently 26,279 prisoners are in prison. Sinceit was contended on behalf of the petitioners that the official capacity is A

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Aonly 23,217, the State Government had indicated that temporary prisonshave been set up in 36 locations and about 2597 prisoners are occupyingthe same as of now and more will be shifted to avoid overcrowding inthe existing prisons, which indicates that appropriate steps are beingtaken to achieve the object.B14. Having stated so it is necessary to indicate that the cause forgrievance may arise for an individual undertrial/convicted prisoner onlyif such person has been discriminated as against the prisoner in the samecategory for which the benefit has been provided by the categorisationmade by the HPC. That apart the intention being to decongest the prisons,as a first step the release of the prisoners based on the impugnedCguidelines, held to be unflawed would be made. If, despite the release ofthe undertrial/convicted prisoners in the categories presently made doesnot achieve the purposeand the fact that additional prisons are set upalso does not suffice and in that context if any modification with regardto the categories made by HPC is necessary; certainly it would be open Dfor the HPC to take note of the same and apply their mind to modify itsguidelines in that regard.

15. Therefore, it would still be open for the petitioners to obtainnecessary statistics and if any modification of the guidelines is necessaryin future,they will be at liberty to submit an appropriate representation tothe HPC which would in that circumstance look into the same and arriveEat a conclusion at its discretion depending on the need or otherwise tomodify its guidelines. In that view, we are of the opinion that when suchfactual consideration to achieve the object alone is necessary and theHPC is constituted for the very purpose, interference in a judicialproceeding of the present nature to alter the criteria would not ariseFunless it is shown to be so arbitrary that no reasonable person can accept.But in circumstances where there is any individuous discriminationamongst the prisoners in same category and similarly placed, it would beopen for the competent Court to examine the same to that limited extentwhen grievance is raised by the person who is denied the benefit if he/she is entitled to such benefit.G

16. With the afore-stated observations, the above petition standsdismissed. No order as to costs. Pending application, if any, standsdisposed of.

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Ankit Gyan