PUCL v State of Haryana -PIL Challenging Haryana Prisoners Good Conduct Amendment Act, 2012

7/28/2019 PUCL v State of Haryana -PIL Challenging Haryana Prisoners Good Conduct Amendment Act, 2012

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

C.W.P. No. ______ of 2013

PEOPLES UNION FOR CIVIL LIBERTIES ..Petitioner

Versus

STATE OF HARYANA and Another ..Respondents

INDEX

Sr. No. Particulars Dated Page(s) Court Fees (Rs)

1. List of Dates and Events 17.07.2013 A --

2. Memo Of Parties 17.07.2013 1 50/-

3. Civil Writ Petition 17.07.2013 2-20 ---

4. Affidavit 17.07.2013 21-22 ---

5. Annexure P-1 (Resolution) 16.07.2013 23 0.65/-

6. Annexure P-2 (Hry Good Conduct Act, 1988) 13.09.1988 24-29 3.90/-

7. Annexure P-3 (Amendment Act 2012) 14.08.2012 30-32 1.95/-

8. Annexure P-4 (Judgment, Delhi High Court) 01.05.2012 33-74 27.30/-

9. Annexure P-5 (Extracts of Prison Statistics India) 2011 75-86 14.30/-

10. Power of Attorney 17.07.2013 87 3/-Rs. 101.10/-

Notes:

1. The questions of law canvassed in the present petition are contained in para No.33 at

Page 17 & 18 thereof.

2. Relevant Statute/Rules: Haryana Good Conduct Prisoners (Temporary Release) Act,

1988 and Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2012

3. Any other case: Nil

4. As per the knowledge of the petitioner, no caveat petition has been filed in the matter.5. The present petition is in the nature of a P.I.L.

CHANDIGARH (ARJUN SHEORAN)DATED: 17.07.2013 P-867/2011

ADVOCATECOUNSEL FOR THE PETITIONER

15333


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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

C.W.P. No. ______ of 2013

PEOPLES UNION FOR CIVIL LIBERTIES ..Petitioner

Versus

STATE OF HARYANA and Another ..Respondents

Total amount of Court Fees Affixed: Rs. 101.10/-

___________________________________________________________________

Chandigarh (ARJUN SHEORAN)Advocate

DATED: 17.07.2013 P-867/2011Counsel For The Petitioner

15333


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LIST OF DATES AND EVENTS

DATE EVENT

13.09.1988 Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 was

published in the Gazette of Haryana

01.10.2012 Haryana Good Conduct Prisoners (Temporary Release) Amendment Act,

2012, which inserted Section 2(aa) and Section 5A inter alia was published in

the Gazette of Haryana

17.07.2013 Filing of the present petition.




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IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Civil Writ Petition No. __________ of 2013

PUBLIC INTEREST LITIGATION

MEMO OF PARTIES

PEOPLES UNION FOR CIVIL LIBERTIES, PUNJAB AND CHANDIGARH

CHAPTER, through its General Secretary Sh. Rajendra Mohan

Kashyap s/o Late Shiv Dutt, residing at H.No. 133, Sector 22A,

Chandigarh

Petitioner

Versus

1. STATE OF HARYANA, Civil Secretariat, Chandigarh through its

Secretary, Law and Legislative Department, Government of

Haryana.

2. DIRECTOR GENERAL OF PRISONS, HARYANA, Panchkula,

Haryana, 03-04 Bays Building, Sector 14, Panchkula

(Haryana).

Respondents


DATED: 17.07.2013 P-867/2011

Counsel For The Petitioner

15333


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A WRIT PETITION IN PUBLIC INTEREST UNDER

ARTICLE 226 OF THE CONSTITUTION OF INDIA

FOR DECLARING ULTRA VIRES SECTION 2(aa) and

5A INTER ALIA OF THE HARYANA GOOD

CONDUCT PRISONERS (TEMPORARY RELEASE),

1988 INSERTED VIDE THE HARYANA GOOD

CONDUCT PRISONERS (TEMPORARY RELEASE)

AMENDMENT ACT 2012 WHICH IS NOT IN

CONSONANCE WITH THE LETTER AND SPIRIT OF

THE CONSTITUTION OF INDIA, BEING VIOLATIVE

OF ARTICLE 14 AND 21 OF THE CONSTITUTION OF

INDIA

RESPECTFULLY SHOWETH:

1) That the petitioner is an organization agitating and fighting for human

rights and civil liberties in India. The petitioner has taken up cudgels on

behalf of the oppressed and weaker sections in defence of their rights in

the Honble Supreme Court of India as well as various Honble High

Courts across the country. Therefore, the petitioner has locus standi to

file the present writ petition and is thus competent to invoke the

extraordinary writ jurisdiction of this Honble Court.

2) That the petitioner is a State Chapter, in charge of Chandigarh, Punjab

and also currently in charge of Haryana, of the Peoples Union for Civil

Liberties, India (hereinafter referred to as PUCL India) which is possibly

Indias largest and amongst the most recognized human rights bodies in


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the country. PUCL India has initiated several legal interventions in

human rights and civil liberties issues, and filed several Public Interest

Litigation Petitions in the Honble Supreme Court of India and Honble

High Courts across India for the enforcement of citizen rights and civil

liberties. This has led to several notable and path breaking decisions of

the Honble Courts, which include the famous Right to Food case

currently under adjudication before the Honble Supreme Court.

Instances of reported judgments of the same would include the matter

reported as AIR 1997 SC 568, (PUCL v. Union of India) wherein the

PUCL had challenged the telephone tapping by the police in the Honble

Supreme Court on the ground that the citizen had a right to privacy

which was a part of Right to life as per Article 21 of the Constitution of

India. In another matter, reported as AIR 1997 SC 1203, the PUCL filed

a matter for compensation in a case of a fake encounter. Thereafter,

vide CWP No. 1827 of 2004, the PUCL approached the Honble High

Court of Punjab and Haryana for the constitution of a State Human

Rights Commission for the State of Haryana under the Protection of

Human Rights Act, 1993.

3) That the petitioner is acting in a bona fide manner, entirely for public

interest of numerous prisoners lodged in the jails situated in the State of

Haryana, most of whom are Indian citizens. The petitioner has

authorized the its General Secretary, Shri Rajender Mohan Kashyap

through the a resolution passed by the Executive Committee dated

16.05.2013. A copy of the said resolution is annexed herewith as

ANNEXURE P-1.

4) It is during its work as a human rights and civil liberties organization that

it was realised that changes have been made in the Haryana Good

Conduct Prisoners (Temporary Release) Act, 1988 (hereinafter referred

to as the Act) and Sections 2(aa) and 5A have been inserted vide the


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Haryana Good Conduct Prisoners (Temporary Release) Amendment

Act, 2012 (hereinafter referred to as the Amendment Act).

Copies of the Haryana Good Conduct Prisoners (Temporary Release)

Act, 1988 and the Haryana Good Conduct Prisoners (Temporary

Release) Amendment Act, 2012 are annexed herewith as ANNEXURE P-2

and ANNEXURE P-3

5) That the Act prescribes for the temporary release of prisoners for good

conduct on certain conditions. The Amendment Act, on being passed by

the Legislature of the State of Haryana received assent of the Governor

of Haryana on 14th

September, 2012 and was notified in the Gazette

vide Notification dated 1st October, 2012 wherein those labelled

hardcore prisoners have been denied the right to be released

temporarily or on furlough barring in cases of marriage or death of

relatives.

6) That the Amendment Act, apart from inserting Sections 2(aa) and 5A,

also made amendments in Section 6 and omitted the proviso to Section

4(1) (b) from the Act.

7) That Section 2 (aa) of the Act now reads as follows:

(aa) hardcore prisoner means a person, who

(i) has been convicted of dacoity, robbery, kidnapping, for

ransom, murder with rape, serial killing, contract killing,

murder or attempt to murder for ransom or extortion,

causing grievous hurt, death, or waging or attempting

to war against Government of India, buying or selling

minor for purposes of prostitution or rape with a woman

below sixteen years of age or such other offence as the

State Government may, by notification, specify; or


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(ii) during any continuous period of five years has been

convicted and sentenced to imprisonment twice or

more for commission of one or more of offences

mentioned in chapter XII or XVII of the Indian Penal

Code, except the offences covered under clause (i)

above, committed on different occasions not

constituting part of same transaction and as a result of

such convictions has undergone imprisonment atleast

for a period of twelve months:

Provided that the period of five years shall be counted

backwards from the date of second conviction and

while counting the period of five years, the period of

actual imprisonment or detention shall be excluded.

ExplanationA conviction which has been set-aside in

appeal or revision and any imprisonment undergone in

connection therewith shall not be taken into account for

the above purpose; or

(iii)has been sentenced to death penalty; or

(iv)has been detected of using cell phone or in possession

of cell phone/SIM card inside the jail premises; or

(v) failed to surrender himself within a period of ten days

from the date on which he should have so surrendered

on the expiry of the period for which he was released

earlier under this Act;

8) That Section 5A of the principal Act, as inserted by the Amendment Act

reads as follows:

5A. Special Provis ions for Hardcore prisoners.

Notwithstanding anything contained in sections 3 and 4, a

hardcore prisoner shall not be released on temporary basis or

on furlough:


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Provided that a hardcore prisoner may be allowed to

attend the marriage of his child, grand child or sibling; or

death of his grand parent, parent, grand parent in-laws,

parent-in-laws, sibling, spouse or child under armed police

escort for a period of forty eight hours to be decided by the

concerned Superintendent Jail and intimation in this regard

with full particulars of hardcore prisoner being released, shall

be sent to the concerned District Magistrate and

Superintendent of Police within twenty four hours.

9) That the Section 2(aa) and 5A of the Act, put undue, unfair and arbitrary

restrictions on the right of prisoners to be released on furlough or on

temporary release, as was possible under the Act prior to the

amendments made vide the Amendment Act and this therefore violative

of Article 14 and 21 of the Constitution of India.

10)That the Section 3 of the Act, prior to amendments, entitled any prisoner

to be released temporarily. Section 4 of the Act, also allowed to the

release of eligible prisoners on furlough. However, vide the now deleted

proviso to clause (b) of sub-section (1) of section 4 of the Act, such

facility of being released on furlough was not allowed to

a prisoner who

(i) is a habitual offender as defined in sub-section (3) of Section

2 of the Punjab Habitual Offenders (Control and Reform) Act,

1952; or

(ii) has been convicted of dacoity or such other offence as the

State Government may, by notification, specify.


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11)That the definition of habitual offender as per sub-section (3) of Section

2 of the Punjab Habitual Offenders (Control and Reform) Act, 1952 is as

follows:

(3) Habitual Offender means a person

(a) who, during any continuous period of five years, whether

before or after the commencement of this Act, has been

convicted and sentenced to imprisonment more than twice

on account of any one or more of the offences mentioned

in the Schedule to this Act committed on different

occasions and not constituting parts of the same

transaction; and

(b) who has, as a result of such conviction suffered

imprisonments at least for a total period of twelve months.

Explanation 1. A conviction which has been set aside in

appeal or revision and any imprisonment suffered in

connection therwith shall not be taken into account for the

above purpose.

Explaination 2. In computing the period of five years, any

periods spent in jail either under a sentence of imprisonment

or under detention shall not be taken into account.

12)Thus, it is apparent from the perusal of the definition of habitual

offender defined as per sub-section (3) of Section 2 of the Punjab

Habitual Offenders (Control and Reform) Act, 1952, that only a narrow

category of prisoners who were habitual in committing crimes and thus

had been convicted and imprisoned twice or more for the offences

mentioned in the schedule of the abovesaid Act, or had been convicted


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of dacoity etc, were denied the chance of being temporarily released on

furlough.

13) That however, it is pertinent to mention that Section 5A not only bars a

hardcore prisoner from being released on furlough, but also from on

temporary basis, qua which there existed no bar, prior to the

Amendment Act of 2012.

14) That there ought to be a solitary objective behind grant of furlough

namely the unification of the prisoner with his family members, friends

and society and that purpose which would be defeated in case the

prisoner is denied furlough altogether and is to suffer long incarceration

by serving entire sentence before he is in a position to come out of the

prison. Therefore, good conduct in the prison should be the only

relevant criteria while granting furlough/temporary release.

15)That almost a blanket ban from being released from prison on temporary

release or on furlough, as envisaged by the Amendment Act, is arbitrary

and unconstitutional, as not only there is no reasonable differentia to

differentiate prisoners who are barred from being released temporarily

or on furlough, but also because the reformatory goals of the Indian

penological system are not fulfilled by such arbitrary differentiation.

16)That even the definition of hardcore prisoner in Section 2 (aa) of the

Act is excessively arbitrary as it covers a huge number of offences

under its ambit, thereby excluding a number of prisoners from being

released on furlough or on temporary release. At the same time, the

said definition does not cover several offences which are equally, if not

more serious in nature.

17)That while barring prisoners sentenced to death penalty appears

reasonable owing to the special circumstances of such prisoners,

barring other prisoners from being released on furlough or on temporary

release, merely because a prisoner has committed an offence, even


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though only once, is clearly arbitrary, because this assumes that such a

prisoner does not deserve the concession of being released at all.

18)That several of the offences listed in Section 2 (aa) of the Act are

otherwise not that serious enough in nature, for example the offences of

being detected of using a cell phone or in possession of cell phone/SIM

Card, as per Section 2 (aa)(iv) of the Act, that the prisoners are grossly

miscategorised as hardcore criminals and thereafter are completely

precluded from being released temporarily or on furlough for the entire

duration of their imprisonment. Similarly, section 2 (aa) of the Act also

refers to many fairly vague terms such as contract killing and serial

killing without duly defining them and which may possibly be prone to

misuse. This arbitrary curtailment of rights is not just bad for the

prisoners per se, but also for the society as a whole as the efforts for

reformation of the prisoner and being accepted by society, when out on

temporary release and/or furlough are thereby defeated.

19)That thus it is pertinent to note that there has been no real application of

mind while deciding who a hardcore prisoner should be, as per Section

2 (aa), incorporating a sweeping and broad category of prisoners and a

time tested definition of habitual prisoner as contained in the sub-

section (3) of Section 2 of the Punjab Habitual Offenders (Control and

Reform) Act, 1952 has been discarded.

20)That in a similar case, titled Dinesh Kumar v. Govt. of NCT of Delhi,

WP (C) 1229 of 2012 decided on 01.05.2012 by an Honble Division

Bench of the Honble Delhi High Court (hereinafter referred to as Dinesh

Kumars Case) wherein the constitutional challenge was upheld to the

Clause 26.4 of the Parole/Furlough Guidelines, 2010, which provided

that in order to be eligible to obtain furlough, the prisoner must fulfil the

following criteria:- 26.4. The prisoner should not have been convicted of

robbery, dacoity, arson, kidnapping, abduction, rape and extortion.


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21)That it was held in the Dinesh Kumars Case:

48. These are, thus, the parameters which can be looked into while

denying the furlough in a particular case and particularly those

convicted of the offences mentioned in Clause 26.4. We may record

that the authorities may be extra cautious in granting a furlough to an

inmate convicted of a serious crime against the person and/or whose

presence in the community could attract undue public attention,

create unusual concern, or depreciate the seriousness of the

offense. If the authority approves a furlough for such an inmate, it

must place a statement of the reasons for this action. However, their

exclusion per se making them ineligible at the outset even from

consideration to obtain furlough becomes discriminatory and

arbitrary and it cannot have any rational nexus. We find ourselves

in difficulty to agree with the reasoning given by the Gujarat High

Court in Juvan Singh Lakhubhai Jadeja (supra).

49. To sum up, we hold that the provision contained in Clause 26.4

of Guidelines, 2010 in the present form does not stand judicial

scrutiny which makes persons ineligible for furlough merely on the

basis of the nature of crime committed by them. It would amount to

snatching their right to at least consider their cases for grant of

furlough. We thus, strike down this provision as unconstitutional and

infringing the Article 14 as well as Article 21 of the Constitution.

A copy of the judgment passed in Dinesh Kumars Caseis annexed

herewith as ANNEXURE P-4.

22)That, similarly, in the present case, the exclusion of the category of

hardened criminals is discriminatory and arbitrary and therefore

unconstitutional.


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23)That it must be kept in mind that prisoners who have been in prison for

some time and are supposed to have undergone some reformation.

Dinesh Kumar sjudgment states the follows in this regard:

46. It is also to be kept in mind that by the time an application for

furlough is moved by a prisoner, he would have spent some time in

the Jail. During this period, the various reformatory methods must

have been applied. We can take judicial note of this fact, having

regard such reformation facilities available in Tihar Jail. One would

know by this time as to whether there is a habit of relapsing into

crime inspite of having administered correctional treatment. This

habit known as recidivism reflects the fact that the correctional

therapy has not brought in the mind of the criminal. It also shows

that criminal is a hard core who is beyond correctional therapy. If the

correctional therapy has not made in itself, in a particular case, such

a case can be rejected on the aforesaid ground i.e. on its merits.

Thus, the State would still have the power to reject an application of a

prisoner, on merits, after due evaluation. However, the discriminatory

and arbitrary restriction wherein a prisoner, merely as a result of

committing an offence cannot even apply for furlough is clearly

unjustified and liable to struck down as unconstitutional as was done in

Dinesh Kumar scase.

24)That it must be remembered that even if the newly added sections to the

Act are struck down as unconstitutional, there do exist specific and fairly

effective safeguards in the hands of the Respondents to deny the right

of furlough/temporary visits to a prisoner. The same are contained in the

Act itself, in Sections 6, which has also been amended vide the

Amendment Act, wherein a prisoner can be denied furlough or

temporary release under Sections 4 and 3 of the Act if on the report of


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the District Magistrate, the State Government is satisfied that the

release of such prisoner is likely to endanger the safety and security of

the State or the maintenance of public order.

25)That it is pertinent to mention that in the decision of the Honble Three

Judge Bench of Supreme Court in the case ofAvtar Singh v. State of

Haryana, 2002(1) R.C.R.(Criminal) 786, wherein the present Act was

under challenge, it was stated that .Section 4 has been enacted as a

reformative measures as a prisoner has to show good conduct while in

incarceration.

26)That the importance of parole and furlough was underscored in Dinesh

Kumar sCase wherein it was stated:

21. What follows from the above is that the four main objects which

punishment of an offender by the state is intended to achieve are

deterrence, prevention, retribution and reformation. There has been

substantial diversion from the previously existing popular concept of

retribution. Of late the focus has shifted upon the reformation.

The earlier criminal law concept of an eye for eye and a tooth for

tooth has been replaced by a more humane concept which

emphasizes upon the re-allocation of an accused into the society.

The concept of parole and furlough are in fact a step towards the

accomplishment of this very purpose.

22. The provisions of parole and furlough provide for a humanistic

approach towards those lodged in jails. Main purpose of such

provisions is to afford to them an opportunity to solve their personal

and family problems and to enable them to maintain their links with

society. Even citizens of this country have a vested interest in

preparing offenders for successful re-entry into society. Those who

leave prison without strong networks of support, without employment

prospects, without a fundamental knowledge of the communities to


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which they will return, and without resources, stand a significantly

higher chance of failure. When offenders revert to criminal activity

upon release, they frequently do so because they lack hope of

merging into society as accepted citizens. Furloughs can help

prepare offenders for success.

27) That an arbitrary, illogical and unconstitutional presumption has been

made that those persons who have committed the offences listed in

Section 2 (aa) of the Act would be hardened criminals for whom

commitment of such offences has become a habit or way of life and they

would necessarily tend to commit the same crime again and again. Such

a presumption is not only ill-presumed but also goes against Article 14

of the Constitution.

28)That it must be remembered, that it has been laid down umpteen times

by the Honble Supreme Court that prisoners, merely by virtue of being

in prison do not lose their fundamental rights.

29)That even this Honble Court, while dealing with the issue of grant of

temporary release to prisoner had stated in the matter ofKaran Singh v.

State of Haryana, 1996(2) CLJ (Criminal) 190 :

Therefore, from the above discussion, it emerges that adequate

safeguards to ensure that on the expiry of the period of temporary

release of the petitioner, surrenders to the jail custody to undergo the

remaining sentence. The recent trend in criminology is towards

reformation and not to hate the criminal but the crime, to provide him

with all the facilities to enable him to socialize with his family

members and also given him an opportunity to come into contact

with the other members of the society outside the cold walls of the

jail so that he may also for sometime breathe fresh air outside the

boundary of the jail and feel the warm affection and love of his family

members and give the same to his family members himself. The aim


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is not to keep him confined all the with obdurate criminals which may

have bad effect on his social out look towards society. The prisoner

is not stripped of his fundamental, or other legal rights, save these

which are inconsistent with his incarceration, and if any of those

rights is violated, the Court cannot be a distant spectator but is to

spring into action to see that the aim and objection of the Act is

carried out in its letter and spirit. He is to be permitted to socialize

with the members of the family and friends, subject, of course, to all

valid prison regulations under the Act. The main object is to see that

the prisoner comes out of the jail as a different man than the one

when he went to the jail. If a criminal comes out of the jail as a better

citizen it will go a long way to bring peace in the society. The society

is to be reformed and got rid of the criminal persons so as to bring

stability, peace, tranquillity, business and prosperity in the society.

Many a time, crime is the responsibility of socio-economic milieu and

it is the duty of the agencies maintaining the public order and running

criminal justice system to see that the crimes are minimized, The

prison in modern terms in real sense is no longer a prison of old

times but an institution of reformation churning out good citizens from

bad ones.

30)That the important of constitutional safeguards and fundamental rights

was reiterated in the Dinesh K umar sJudgment as well:

38. There can be no cavil in saying that a society that believes in the

worth of the individuals can have the quality of its belief judged, at

least in part, by the quality of its prisons and services and recourses

made available to the prisoners. Being in a civilized society

organized with law and a system as such, it is essential to ensure for

every citizen a reasonably dignified life. If a person commits any

crime, it does not mean that by committing a crime, he ceases to be

a human being and that he can be deprived of those aspects of life


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which constitutes human dignity. For a prisoner all fundamental

rights are an enforceable reality, though restricted by the fact of

imprisonment.

39. In Sunil Batra versus Delhi Administration, (1980) 3 SCC 488,

Justice D.A.Desai, speaking for himself, the Honble Chief Justice of

India and two Honble Judges observed that a convict is in prison

under the order and direction of the Court and the Court has,

therefore, to strike a just balance between the dehumanizing prison

atmosphere and the preservation of interval order and discipline, the

maintenance of institutional security against escape, and

rehabilitation of the prisoners. Article 21 guarantees protection of life

and personal liberty. Though couched in the negative it confers the

fundamental right to life and personal liberty.

40. In Maneka Gandhi versus Union of India, AIR 1978 SC 579,

Justice Bhagwati observed that if a law depriving a person of

personal liberty and prescribing a procedure for that purpose within

the meaning of Article 21 has to stand the test of one or more of the

fundamental rights conferred under Article 19, which may be

applicable in a given situation, exhyopthesis it must also be liable to

be tested with reference to Article 14.

41. Justice V.R. Krishna Iyer in Charles Sobraj v. Supdt., Central

Jail, AIR 1978 SC 1514, observed that imprisonment does not spell

farewell to fundamental rights although, by a realistic re-appraisal,

Courts will refuse to recognize the full panoply of part III enjoyed by

free citizens. Further, observed that the axiom of prison justice is the

Courts continuing duty and authority to ensure that the judicial

warrant which deprives a person of his life or liberty is not exceeded,

subverted or stultified. It is a sort of solemn covenant running with

the power to sentence. Referring to the decision of Supreme Court in

Rustom Cowvasjee Cooper v. Union of India, AIR 1970 SC 1318,


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and Maneka Gandhi (Supra), it was observed that Prisoners retain

all rights enjoyed by free litigants except those lost necessary as an

incident of confinement, the rights enjoyed by prisoner's under Article

14, 19 and 21 though limited, are not static and will rise to human

heights when challenging situation arise.

42. The Supreme Court in Sunil Batra versus Delhi Administration

(Supra) observed Prisons are built with stones of law, and sort

behoves the Court to insist that, in the eye of law, prisoners are

persons, not animals and punish the deviant guardians of the

prison system where they go berserk and defile the dignity of the

human inmate. Prison houses are part of Indian earth and the Indian

Constitution cannot be held at bay by Jail officials dressed in a little,

brief although when part III is invoked by a convict. For when a

prisoner is traumatized, the constitution suffers a shock. The

Supreme Court further held that the Court has power and

responsibility to intervene and protect the prisoner against may how,

crude behaviour.

31)That it is pertinent to mention that there were about 6529 convicts in the

State of Haryana as on 31.12.2011 as per the National Crime Record

Bureaus Prison Statistics India 2011 (Table 3.3, Page 37). Over

2729 of them are between the ages of 18-30 years i.e. about 41%

convicts are fairly young and would surely benefit from furlough visits.

Similarly, 44.5% and 13.8% belong to the age between 30-50 years and

above 50 years respectively (as per Table 3.14, Page 57). Also, only

5.6% convicted during 2011 were found to be habitual offenders (Table

3.25 of the NCRB Report). Furthermore, as per Table 4.1 of the Report,

the convicts convicted for murder are 2983, for dacoity 274 convicts and

for robbery 177 convicts were present. Many of them would be included

in the list of hardened criminals under the Act. Most of such convicts

are either illiterate or barely educated (Table 5.1). As per table 7.2,


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about 48.3 % of the convicts are serving life sentences and about 18.9%

convicts are serving imprisonment of 10-13 years. These statistics

clearly show the number and range of people who might be affected by

the arbitrary provisions of the impugned Act. Denial of the right to

released on furlough would adversely affect many such convicts. Not

only this, the exclusion of a number of such convicts from being given

furlough would have a highly detrimental effect on not only the convicts

but also the society at large.

A copy of the relevant tables of the Prisons in India 2011 published by

the National Crime Records Bureau, Government of India, as

mentioned above is annexed herewith as ANNEXURE P-5 (COLLY.) .

32)That Section 2(aa) and 5A of the Haryana Good Conduct Prisoners

(Temporary Release) Act, 1988 is arbitrary, unconstitutional and thus

ultra vires the Constitution inter-alia on the following grounds:

i) The impugned Sections not based on any intelligible differentia

and hence violative of Article 14 of the Constitution and also

violative of the fundamental right of the affected prisoners to life

and liberty under Article 21 of the Constitution.

ii) That impugned sections provide for arbitrary criteria for

precluding a prisoner from going on temporary release/furlough,

by terming bunching prisoners convicted for a wide variety of

offences as hardcore prisoners and thereby take away a legal

right to be released on furlough/temporary release, on fulfilment

of conditions.

iii) That the conduct of the prisoner while in prison should be the

primary criteria for granting furlough/temporary release under the

Haryana Good Conduct Prisoners (Temporary Release) Act,

1988 and precluding prisoners merely on the basis of the offence

for which they have been convicted is arbitrary and thus

unconstitutional.


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iv) That the impugned Sections do not take into account the

humanistic and reformatory nature of the Indian penological

system, and arbitrarily presume that merely because a person

has been convicted certain offences, the said prisoner does not

get the right to be released on furlough/temporary release.

33) That the main law points involved in the present writ petition are:

i) Whether Section 5A of the Haryana Good Conduct Prisoners

(Temporary Release) Act, 1988 is illegal, unjustified and arbitrary,

having no reasonable nexus with the purpose of the Act and

hence, violative of Article 14 and 21 of the Constitution of India?

ii) Whether Section 2 (aa) of the Haryana Good Conduct Prisoners

(Temporary Release) Act, 1988 is illegal, unjustified and arbitrary,

having no reasonable nexus with the purpose of the Act and

hence, violative of Article 14 and 21 of the Constitution of India?

iii) Whether the unjust, arbitrary bar on the release of hardcore

prisoners temporarily or on furlough under the Haryana Good

Conduct Prisoners (Temporary Release) Act, 1988 violative of

Article 14 and 21 of the Constitution of India?

iv) Whether the conduct of the prisoner while in prison should be the

primary criteria for granting furlough/temporary release under the

Haryana Good Conduct Prisoners (Temporary Release) Act,

1988?

34)That there is no alternative efficacious remedy available with the

petitioner except to approach this Honble Court by way of filing the

present writ petition. No appeal or revision lies in the conspectus of the

present case.

35)That the Petitioner has not filed any such or similar writ petition either in

this Honble Court or in the Honble Supreme Court of India.

36)That the Petitioner has no other alternative remedy of appeal or revision

except to approach this Honble Court under Article 226 of the

Constitution of India.


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19

PRAYER

It is therefore respectfully prayed that the record of the case may be

summoned and after perusal of the same, this Honble Court may be

pleased to:

(i) Issue appropriate writ holding Section 2 (aa) & 5A inter alia of the

Haryana Good Conduct Prisoners (Temporary Release), 1988

inserted vide the Haryana Good Conduct Prisoners (Temporary

Release) Amendment Act 2012 as ultra vires;

(ii) Issue appropriate writ(s) directing the respondents to frame a

more humane temporary release/furlough policy;

(iii) Stay the operation of the amendments made vide the Haryana

Good Conduct Prisoners (Temporary Release) Amendment Act

2012 in the interim period, pending adjudication of the instant

petition;

(iv) Issue any other writ, order or direction which this Honble Court

deems fit under the facts and circumstances of the present case;

(v) Dispense with the issuance of advance notices upon the

Respondents and exempt the Petitioner from filing certified

copies of Annexures P-2 to P-5, and allow true typed copies of

the same;

(PETITIONER)



VERIFICATION


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20

Verified that the contents of my above writ petition from para 1 to 36 are

true and correct to my knowledge. No part of it is false and nothing material

has been concealed therein.

Chandigarh (DEPONENT)DATED: 16.07.2013


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21

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Civil Writ Petition No. __________ of 2013

PUBLIC INTEREST LITIGATION

PEOPLES UNION FOR CIVIL LIBERTIES, PUNJAB AND CHANDIGARH

CHAPTER, through its General Secretary Sh. Rajendra Mohan

Kashyap s/o Late Shiv Dutt, residing at H.No. 133, Sector 22A,

Chandigarh

Petitioner

Versus

1. STATE OF HARYANA, Civil Secretariat, Chandigarh through its

Secretary, Law and Legislative Department, Government of

Haryana and Another

Respondents

AFFIDAVIT OF SH. RAJINDER MOHAN

KASHYAP S/O LATE SHIV DUTT, RESIDING AT H.NO. 133,

SECTOR 22A, CHANDIGARH, GENERAL SECRETARY OF

PEOPLES UNION FOR CIVIL LIBERTIES, CHANDIGARH,

HARYANA AND PUNJAB CHAPTER,

I, the above named deponent, do hereby solemnly affirm and declare as

under:


25/89

22

1. That the deponent is fully conversant with the facts of the case and is

therefore, competent to swear the present affidavit.

2. That the averments made in para 1 to para 36 are true and correct to

my knowledge. No Part of it is false and nothing material has been

concealed therein.

3. That the deponent is filling the accompanying petition in public

interest and has no personal interest in the same.

Chandigarh

Dated: 17th July, 2013 DEPONENT

VERIFICATION

Verified that the contents of my above affidavit are true and

correct to my knowledge. No part of it is false and nothing material has

been concealed therein.

Chandigarh

Dated: 17th July, 2013 DEPONENT


26/89

ANNEXURE P-1

RESOLUTION

Unanimously resolved at a meeting of the Executive

Committee of the Peoples Union of Civil Liberties [PUCL]

Punjab at Chandigarh held on 16th

June, 2013, under the

Chairmanship of the President, Shri Roshan Lal Batta that

Shri Rajender Mohan Kashyap, General Secretary of the

PUCL Punjab and Chandigarh Chapter is hereby

authorized to sign all papers on behalf of the PUCL Punjab

to file a Writ Petition in the Honble Punjab and Haryana

High Court to challenge Sections SECTION 2(aa) and 5a

inter alia of the Haryana Good Conduct Prisoners

(Temporary Release), 1988, introduced by the Haryana

Good Conduct Prisoners (Temporary Release)

Amendment Act 2012 and appoint Sh. Arjun Sheoran,

Advocate to prepare and argue the said matter.

ROSHAN LAL BATTA RAJEEV GODARA

President General Secretary

RAJENDER MOHAN KASHYAP

General Secretary


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1988: HARYANA ACT, 28] GOOD CONDUCT PRISONERS

(TEMPORARY RELEASE)

THE HARYANA GOOD CONDUCT PRISONERS (TEMPORARY RELEASE)

ACT, 1988

(HARYANA ACT NO. 28 OF 1988)

Table of Contents

Sections

1. Short title, extent and commencement.2. Definition.

3. Temporary release of prisoners on certain grounds.

4. Temporary release of prisoners on furlough.5. Exclusion of certain days in computing period under sections 3 and 4.

6. Prisoners not entitled to be released in certain cases.7. Journey expenses of poor prisoners to be borne by State Government.

8. Liability of prisoners to surrender on expiry of release period and consequences of

overstaying.9. Penalty for failure to surrender.

10. Power to make rules.

11. Repeal and savings.

24ANNEXURE P-2


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1988: HARYANA ACT, 28] GOOD CONDUCT PRISONERS

(TEMPORARY RELEASE)

1[THE HARYANA GOOD CONDUCT PRISONERS (TEMPORARY RELEASE)

ACT, 1988]

(HARYANA ACT NO. 28 OF 1988)

(Received the assent of the Governor of Haryana on the 8th

September, 1988 and was

first published in the Haryana Government Gazette (Extraordinary), Legislative

Supplement part 1 of the 13th

September, 1988.)

1 2 3 4Year No. Short title Whether repealed or otherwise

affected by Legislation

1988 28 The Haryana Good Conduct

Prisoners (Temporary Release)Act, 1988.

---

1 For statement of Objects and Reasons see Haryana Government Gazette (Extraordinary), dated the 21st

August, 1988, page

25


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AN

ACT

To provide for the temporary release of prisoners for good conduct on

certain conditions.BE it enacted by the Legislature of the state of Haryana in the Thirty-

ninth Year of the Republic of India as follow:-Short title, extent

andcommencement.

1. (1) This Act may be called the Haryana Good conduct Prisoners

(Temporary Release) Act, 1988.

(2) It extends to the whole of the State of Haryana.(3) It shall come into force on such date as the State Government

may, by notification, in the Official Gazette, appoint in this

behalf.Definitions. 2. In this Act, unless the context otherwise requires,-

(a) District Magistrate means the District Magistrate of the district

within whose jurisdiction the prisoner after his temporary releaseunder this Act, is likely to reside during the period of his release;

(b) member of prisoners family means the husband, wife, son,

daughter, father, mother, brother or sister of the prisoner;

(c) prescribed means prescribed by the rules made under this Act;(d) prisoner means a person confined in prison or jail or other

institution of like nature under a sentence of imprisonment for

life or any other authority exercising the powers of a Criminal

Court;(e) Superintendent of Jail means the officer incharge of the prison

or Jail or other institution of like nature in which the prisoner is

undergoing his sentence of imprisonment for life orimprisonment.Temporary release

of prisoners on

certain grounds.

3. (1) The State Government may, in consultation with the District

Magistrate or any other officer appointed in this behalf, by notificationin the official Gazette and subject to such conditions and in such

manner as may be prescribed, release temporarily for a period specified

in sub-Section (2), any prisoner, if the State Government is satisfiedthat-

(a) a member of the prisoners family had died or is seriously ill or

the prisoner himself is seriously ill; or

(b) the marriage of prisoner himself, his son, daughter, grandson,

grand daughter, brother, sister, sisters son or daughter is to becelebrated; or

(c) the temporary release of the prisoner is necessary for sloughing,sowing or harvesting or carrying on any other agricultural

operation on his land or his fathers undivided land actually inpossession of the prisoner; or

(d) it is desirable to do so for any other sufficient cause.

(2)The period for which a prisoner may be released shall be

26


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determined by the State Government so as not to exceed-

(a) where the prisoner is to be released on the grounds specified inclause (a) of sub-section (1), three weeks;

(b) where the prisoner is to be released on the ground specified in

clause (b) or clause (d) of sub-section (1), four weeks; and

(c) where the prisoner is to be released on the grounds specified inclause of sub-section (1), six weeks;

Provided that the temporary release under clause can be availed more

than once during the year, which shall not, however, cumulativelyexceed six weeks.

(3) The period of release under this section shall not count towards the

total period of the sentence of a prisoner.(4) The State Government may, by notification, authorize any officer

to exercise its powers under this section in respect of all or any other

ground specified there under.Temporary releaseof prisoners on

furlough.

4. (1) The State Government or any other officer authorized by it in

this behalf may, in consultation with such other officer as may beappointed by the state Government, by notification, and subject to such

conditions and in such manner as may be prescribed, releasetemporarily, on furlough, any prisoner who has been sentenced to a

term of imprisonment of not less than four years and who-

(a) has, immediately before the date of his temporary release,undergone continuous imprisonment for a period of three years,

inclusive of the persistence detention, if any;(b) has not during such period committed any jail offence (except an

offence punished by a warning) and has earned at least three

annual good conduct remission;provided that nothing herein shall apply to a prisoner who-

(i) is a habitual offender as defined in sub-section (3) of section

2 of Punjab Habitual Offenders (Control and Reform) Act,1952; or

(ii) has been convicted of dacoit or such other offence as the

State Government may, by notification, specify.

(2) The period of furlough for which a prisoner is eligible under sub-section (1) shall be three weeks during the first year of his release and

two weeks during each successive year thereafter.

(3) Subject to the provisions of clause (d) of sub-section (3) of section8, the period of release referred to in sub-section (1) shall count

towards the total period of the sentence undergone by a prisoner.Exclusion of

certain days in

computing periodunder sections 3

and 4.

5. For the purpose of calculating the period of temporary release of aprisoner under sections 3 and 4, the dates of departure from and arrival

at the prison shall be excluded.

Prisoners not

entitle to be

released in certaincases.

6. Notwithstanding anything contained in sections 3 and 4, no prisoner

shall be entitled to be released under this Act if, on the report of the

District Magistrate, the State Government or an officer authorized by it

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in this behalf is satisfied that his release is likely to endanger the

security of the State or the maintenance of public order.Journey expenses

of poor prisonersto be borne by

State Government.

7. If on the report of the District Magistrate, the State Government is

satisfied that prisoners family cannot bear the expenses of his journey

from and to the prison after his temporary release under this Act, the

expenses may be borne by the State Government to such extent and insuch manner as may be prescribed.Liability of

prisoner to

surrender on

expiry of releaseperiod and

consequences of

overstaying.

8. (1) On the expiry of the period for which a prisoner is released

under this Act, he shall surrender himself to the Superintendent of theJail from which he was released.

(2) If a prisoner does not surrender himself as required by sub-section (1) within a period of ten days from the date on which he

should have so surrendered, he may be arrested by any Police Officer

or Prison Officer without a warrant and shall be delivered over to theofficer incharge of the prison from which he was released to undergo

the un expired portion of his sentence.(3) If a prisoner surrenders himself to the Superintendent of the Jail

from which he was released within a period of ten days of the date onwhich he should have so surrendered, but fails to satisfy the

Superintendent of the Jail that he was prevented by any sufficient cause

from surrendering himself immediately on the expiry of the period forwhich he was released, all or any of the following penalties shall after

affording the prisoner a reasonable opportunity of being, be awarded tohim by the Superintendent of the Jail, namely:-

(a) a maximum cut of five days remission for each day of overstay;

(b) stoppage of canteen concession for a maximum period of onemonth;

(c) with holding concession of either interviews or letters or both for

a maximum period of three months;(d) the period of temporary release on furlough of the prisoner under

section 4 shall not be counted towards his sentence;

(e) warning;

(f) reduction from higher to a lower class or grade.Penalty for failure

to surrender.9. (1) Any prisoner who is liable to be arrested under sub-section (2) of

section 8, shall be punishable with imprisonment of either description

which may extend to three years and with fine.(2) An offence punishable under sub-section (1) shall be deemed to be

cognizable and non-boilable

Explanation. The punishment in this section is in addition to thepunishment awarded to the prisoner for the offence for which he was

convicted.Power to make

rules.10. (1) The State Government may, by notification, make rules forcarrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the

foregoing power, such rules may provide for-

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(a) the execution by the prisoner (including his sureties) of bond for

his good behavior during the release period and for his surrenderon the expiry of such period;

(b) the amount for which and the form and manner in which such

bonds shall be furnished;

(c) the forfeiture of the amount of bonds in case of breach of any ofits terms;

(d) the conditions on which and the manner in which prisoners may be

released temporarily under this Act;(e) the manner in which the District Magistrate or any other officer

may be consulted in the matter of temporary release of a prisoner;

(f) the extent to which and the manner in which journey expenses ofpoor prisoner shall be borne by the State Government;

(g) any investigation, legal proceeding or remedy in respect of any

such right, privilege, obligation, liability, penalty, forfeiture orpunishment as aforesaid.

Repeal andsavings.

11.The Punjab Good Conduct Prisoner (Temporary Release) Act1962 (Punjab Act No. 11 of 1962), in its application to the state of

Haryana, is hereby repealed;

Provided that such repeal shall not affect,-

(a) the previous operation of the act so repealed or anything duly doneor suffered there under; or

(b) any right, privilege, obligation or liability acquired or incurred

under the Act so repealed; or(c) any penalty, forfeiture or punishment, incurred in respect of any

offence committed against the Act so repealed; or(d) any investigation, legal proceeding or remedy in respect of any

such right, privilege, obligation, liability, penalty, forfeiture or

punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be

instituted, continued or enforced, and any such penalty, forfeiture or

punishment may be imposed as if this Act had not been passed:Provided further that anything done or any action taken under the Act

so repealed shall be deemed to have been done or taken under the

corresponding provision of this Act and shall continue to be in forceaccordingly unless and until superseded by anything done or any action

taken under this Act.

29


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HARYANA GOVT. GAZ. (EXTRA.) OCT. 1, 2012

(ASVN. 9, 1934 SAKA)

PART I

HARYANA GOVERNMENT

LAW AND LEGISLATIVE DEPARTMENT

Notification

The 1st October, 2012

No. Leg. 25/2012.- The following Act of the Legislature of the State of Haryana received the

assent of the Governor of Haryana on the 14 th September, 2012, and is hereby published for

general information:---

HARYANA ACT NO. 20 OF 2012

THE HARYANA GOOD CONDUCT PRISONERS (TEMPORARY

RELEASE) AMENDMENT ACT, 2012.

AN

ACT

Further to amend the Haryana Good Conduct Prisoners

(Temporary Release) Act, 1988

Be it enacted by the Legislature of the State of Haryana in the Sixty-third Year of the Republic of

India

1. This Act may be called the Haryana Good Conduct Prisoners (Temporary Release)

Amendment Act, 2012

2. In the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (hereinafter

called the principal Act), in section 2, after clause (a), the following clause shall be

inserted, namely:--

(aa) hardcore prisoner means a person, who

30

ANNEXURE P-3


34/89

(i) has been convicted of dacoity, robbery, kidnapping, for ransom, murder

with rape, serial killing, contract killing, murder or attempt to murder for

ransom or extortion, causing grievous hurt, death, or waging or

attempting to war against Government of India, buying or selling minor for

purposes of prostitution or rape with a woman below sixteen years of age

or such other offence as the State Government may, by notification,

specify; or

(ii) during any continuous period of five years has been convicted and

sentenced to imprisonment twice or more for commission of one or more

of offences mentioned in chapter XII or XVII of the Indian Penal Code,

except the offences covered under clause (i) above, committed on

different occasions not constituting part of same transaction and as a

result of such convictions has undergone imprisonment atleast for a

period of twelve months:

Provided that the period of five years shall be counted backwards from the date of

second conviction and while counting the period of five years, the period of actual

imprisonment or detention shall be excluded.

ExplanationA conviction which has been set-aside in appeal or revision and any

imprisonment undergone in connection therewith shall not be taken into account for

the above purpose; or

(iii) has been sentenced to death penalty; or

(iv) has been detected of using cell phone or in possession of cell phone/SIM

card inside the jail premises; or

(v) failed to surrender himself within a period of ten days from the date on

which he should have so surrendered on the expiry of the period for

which he was released earlier under this Act;

3. Proviso to clause (b) of sub-section (1) of section 4 of the principal Act, shall be

omitted.

4. After section 5 of the principal Act, the following section shall be inserted, namely:--

5A. Special Provis ions for Hardcor e prisoners.Notwithstanding anything

contained in sections 3 and 4, a hardcore prisoner shall not be released on

temporary basis or on furlough:

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Provided that a hardcore prisoner may be allowed to attend the marriage

of his child, grand child or sibling; or death of his grand parent, parent, grand

parent in-laws, parent-in-laws, sibling, spouse or child under armed police escort

for a period of forty eight hours to be decided by the concerned Superintendent

Jail and intimation in this regard with full particulars of hardcore prisoner being

released, shall be sent to the concerned District Magistrate and Superintendent

of Police within twenty four hours.

5. For section 6 of the principal Act, the following section shall be substituted, namely:--

-

6 (1) Notwithstanding anything contained in sections 3 and 4, no prisoner shall

be entitled to be released under this Act if, on the report of the District Magistrate,

the State Government or an officer authorized by it in this behalf is satisfied that

his release is likely to endanger the security of the State or the maintenance of

public order or cause reasonable apprehension of breach of peace.

(2) The District Magistrate, the State Government or the officer authorized to

release the prisoner as provided in sections 3 and 4 of the Act shall take report

from the Police within a specified time frame.

(3) In case of non-recommendation for release by the Police, the release granting

authority shall pass a speaking order, if he disagrees with the report submitted to

him.

6. In sub-section (1) of section 9 of the principal Act, for the words three years and with

fine, the words three years but shall not be less than two years shall be

substituted.

MANJIT SINGH

Secretary to Government, Haryana

Law and Legislative Department

TRUE COPY

ADVOCATE

32


36/89

W.P.(C) 1229/2012 , W.P.(C) 1230/ 2012,W.P.(C) 1231/2012,W.P.(C) 8279/2010 Page 1 of 42

* IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 1229 OF 2012

W.P.(C) 1230 OF 2012

W.P.(C) 1231 OF 2012

W.P.(C) 8279 OF 2010

% Judgments Reserved on:20.3.2012.

Judgment Delivered on:01.5.2012

(1) W.P.(C) 1229 OF 2012

DINESH KUMAR . . . PETITIONER

Through : Mr. Vivek Sood, Advocate.

VERSUS

GOVT. OF NCT OF DELHI RESPONDENT

Through: Mr. N.Waziri, Standing Counselwith Ms.Zubeda Begum and Ms.

Neha Kapoor, Advocates forGovt. of NCT of Delhi.

Mr. Pawan Sharma, StandingCounsel (Crl.) for Govt. of NCT

of Delhi.

(2) W.P.(C) 1230 OF 2012

IBRAHIM . . . PETITIONER

Through : Mr. Vivek Sood, Advocate

VERSUS


33

ANNEXURE P-4


37/89



Neha Kapoor, Advocates for

Govt. of NCT of Delhi.Mr. Pawan Sharma, Standing

Counsel (Crl.) for Govt. of NCTof Delhi.

(3) W.P.(C) 1231 OF 2012

LUV KUSH . . . PETITIONERThrough : Mr. Vivek Sood, Advocate

VERSUS


Through: Mr. N.Waziri, Standing Counsel

with Ms.Zubeda Begum and Ms.Neha Kapoor, Advocates for

Govt. of NCT of Delhi.Mr. Pawan Sharma, Standing

Counsel (Crl.) for Govt. of NCT

of Delhi.

(4) W.P.(C) 8279 OF 2010

SHASHI SHEKHAR @NEERAJ . . . PETITIONER

Through : Mr. Vivek Sood, Advocate

VERSUS



Neha Kapoor, Advocates forGovt. of NCT of Delhi.

34


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Mr. Pawan Sharma, Standing

Counsel (Crl.) for Govt. of NCTof Delhi.

CORAM :-

HONBLE MR. JUSTICE A.K. SIKRI

HONBLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, ACTING CHIEF JUSTICE:

1. In all these writ petitions challenge is to the constitutional validity ofClause 26.4 of the Parole/Furlough: Guidelines, 2010. These Guidelines are

approved by the Lt. Governor, Govt. of NCT of Delhi which are applicable

in case of convicts i.e. those who have been convicted by a competent court

under various laws and are undergoing sentencing in prison. The purpose of

the Guidelines is to regulate applications for parole and furlough and to

ensure that they are considered in a fair and transparent manner. Separate

provisions for regular parole as well as furlough are made in these Guidelines.

Insofar as grant of furlough is concerned which is the subject matter of these

writ petitions, Clause 24 states that a prisoner who is sentenced to 5 years or

more of rigorous imprisonment and has undergone imprisonment for 3 years

or more period excluding remission, can be released on furlough. A prisoner

is entitled 7 weeks of furlough in a year. The first spell can be of 3 weeks

while the subsequent spells have to be of 2 weeks each. Clause 26.4

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mentions eligibility conditions which a prisoner has to fulfill before he would

be eligible to obtain furlough.

2. Clause 26, in toto, is reproduced as under:-26. In order to be eligible to obtain furlough, theprisoner must fulfill the following criteria:-

26.1 Good conduct in the prison and should have

earned three Annual Good Conduct Remissions

and continues to maintain good conduct;

26.2 The prisoner should not be a habitual

offender;

26.3 The prisoner should be a citizen of India.

26.4 The prisoner should not have been

convicted of robbery, dacoity, arson,

kidnapping, abduction, rape and extortion.

26.5 The prisoner should not have been convicted

of any offence relating to any offence against the

State such as sedition;

26.6 The release of the prisoner should not beconsidered dangerous or deleterious to the interest

of national security or there exists reasonable

ground to believe that the convict is involved in a

pending investigation in a case involving serious

crime;

26.7 The convict is no such a person whosepresence is considered highly dangerous or

prejudicial to the public peace and tranquility by

the District Magistrate by his home district.

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3. As is clear from Clause 26.4, any prisoner who has been convicted foran offence of robbery, dacoity, arson, kidnapping, abduction, rape and

extortion is not eligible for grant of furlough. All the petitioners have been

convicted of one or the other offences which is covered by Clause 26.4 and

for this reason, having regard to the aforesaid Guidelines, they are not

rendered ineligible for grant of furlough. According to the petitioners, this

Clause is arbitrary and unreasonable and not based on any intelligible

differentia and hence violative of Article 14 of the Constitution. It is also

contended that it violates fundamental right of the petitioner to life and liberty

under Article 21 of the Constitution.

4. Before we deal with this contention in detail, we may record thebackground of these petitioners, in brief.

W.P.(C) 8279/2010:(Shashi Shekhar @ Neeraj)

5. The petitioner Shashi Shekhar @ Neeraj was convicted under Sections302, 392, 397 IPC in case FIR No. 538/1995, P.S. Vasant Kunj on 27.2.2002

by the Additional Sessions Judge and sentenced to rigorous imprisonment for

life. The petitioner was also convicted under Sections 302,392,397,216-A

IPC in case FIR No. 76/1996, PS C.R. Park on 23.4.2004 by the Additional

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Sessions judge and sentenced to rigorous imprisonment for life on 28.4.2004

The petitioner was also convicted under Section 302 IPC in case FIR No.

509/1995 P.S. Vasant Kunj on 23.4.2004 and sentenced on 28.4.2004 by the

Additional Sessions Judge to rigorous imprisonment for life. The petitioner

claims that as a convict in prison he has maintained a good, disciplined

behaviour and nothing adverse has been reported against him so far. The

petitioner has been granted parole on four occasions by this Court and the

NCT of Delhi in the last three years, the last being from 12.10.2010 to

23.11.2010 which was granted and extended by this Court by 10 days in W.P.

(Crl.) 1667/2010. The petitioner duly fulfilled all the conditions on which he

was granted parole including regular presence at the Police Station as directed

by this Court in W.P.(Crl.) 1667/2010. On each of the aforesaid occasions

when the petitioner was granted parole, he duly surrendered before the Jail

authorities within the stipulated time-frame and no adverse remark has ever

been reported against the petitioner during the said period. The petitioner, in

the month of September, 2010, filed an application for being released on

furlough. However, his application for furlough has not been considered

because of the bar stipulated in Clause 26.4.

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W.P.(C) 1229/2012: (Dinesh Kumar)

6. The petitioner is a convict who is undergoing life imprisonment inconnection with case FIR No. 361/2001 under Section 363/364-A/120-B IPC,

P.S. Kotwali, New Delhi. The petitioner was sentenced by the ld. ASJ, Tis

Hazari, Delhi on 11/13.10.2004. The petitioner has been in jail for about 11

years and 7 months i.e. since 19.6.2001. Adding the period of remission

earned by the petitioner for his good conduct, the time period of the

petitioners incarceration is over 13 years. It is claimed that the petitioners

conduct in jail has been unblemished and without any complaint whatsoever.

The petitioner has been released on parole on three occasions and was granted

interim bail for 3 months by this Court vide order dated 14.2.2006 in Crl. A.

No. 181/2005. The petitioner duly surrendered after enjoying parole and

interim bail that was granted by this Court. It is submitted that the petitioner

did not misuse his liberty in any manner whatsoever. The petitioner, recently,

attempted to file an application for being released on furlough. However, his

application for furlough has not been considered because of the bar stipulated

in Clause 26.4 in view of his conviction under Section 364A IPC.

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W.P.(C)1230/2012: (Ibrahim)

7. The petitioner is a convict who is undergoing life imprisonment havingbeing convicted for the offences punishable under Section 392 & 302 IPC in

connection with case FIR No. 200/2002, P.S. Sultan Puri, Delhi. The

petitioner was sentenced by the Ld. ASJ, Rohini on 18.12.2007. Initially the

case FIR against the petitioner was registered under Section 394 & 302 IPC.

The relevant portion of the judgment of conviction of the petitioner is as

follows:-

Since it cannot be said definitely if the accused

caused injuries to the deceased at the time ofcommitting the robbery or later on, therefore, it is

held that the accused committed the offence

punishable under Section 392 IPC, instead of 394IPC. Both the charges have been established

beyond shadow of doubt. Hence, accused Ibrahim

is convicted for the offences punishable underSection 392 and 302 IPC.

The petitioner has been languishing in jail for about 10 years since

3.3.2002. Adding the period of remission earned by the petitioner for his

good conduct, the time period of the petitioners incarceration is well over 11

years. It is submitted that the petitioners conduct in jail has been

unblemished and without any complaint. The petitioner, attempted to obtain

furlough. However, his application for furlough has not been considered

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because of the bar stipulated in Clause 26.4 in view of his conviction under

Section 392 IPC.

W.P.(C) 1231/2012: (Luv Kush)

8. The petitioner is a convict who is undergoing rigorous imprisonmentfor 10 years and fine in connection with case FIR no. 214/2006 under Section

376 IPC, P.S. Anand Vihar, Delhi. The petitioner was sentenced by the ld.

ASJ, Karkardooma Courts, Delhi on 12.10.2007. The petitioner is in Jail for

about 5 years and 8 months i.e. since 12.4.2006. Adding the period of

remission earned by the petitioner for his good conduct, the time period of

thepetitioners incarceration is about 7 years. The petitioner was released on

parole by this Court for a period of 4 weeks in W.P.(Crl.) 994/2011. The

petitioner duly surrendered after enjoying parole that was granted by this

Court and the petitioner did not misuse his liberty in any manner whatsoever.

The petitioners application for furlough has not been considered because of

the bar stipulated in Clause 26.4 in view of his conviction under Section 376

IPC.

The Submissions:

9. Mr. Vivek Sood, Advocate appeared for all these petitioners. Hissubmission was that Clause 26.4 does not only violate right to freedom and

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liberty, it is unreasonable and discriminatory as well. He submitted that

barring prisoners convicted for the offence stipulated in this Sub- Clause 26.4

was totally illogical and arbitrary when in more serious offences like murder

or even multiple murder cases; furlough or parole could be granted. He also

submitted that those persons who are given parole and/or furlough, it becomes

a good ground for them to review of sentences by the Review Board which

also would be denied in the event prisoner is denied furlough. He also

submitted that there was solitary objective behind grant of furlough namely

the unification of the prisoner with his family members, friends and society

and that purpose would be defeated in case the prisoner is denied furlough

altogether and is to suffer long incarceration by serving entire sentence before

he is in a position to come out of the prison. His submission was that good

conduct in the prison should be the only relevant criteria.

10. Learned counsel for the State responded by pointing out that Rules inquestion were framed at the directions of this Court given in Writ Petition

(Crl.) 112/2009 and after framing of these Rules, the same were shown to the

Court which would amply that the Court had imprimatur over these

guidelines and it was not permissible for the petitioners to challenge these

guidelines now. It was further submitted that the Classification was made on

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Guidelines-2010 were framed. These Guidelines were placed before the

Court on 21.1.2010 and taking note thereof the petition was disposed with the

following order:-

A draft of guidelines for parole/furlough have beenhanded over in Court and is taken on record. The

guidelines have been framed by the DelhiGovernment in consultation with the Member

Secretary, Delhi Legal Services Authority. Learned

Counsel for the Delhi Government states that theguidelines will be placed before the Lieutenant

Governor for his approval and after taking the

approval of the Lieutenant Governor will bepublished within six weeks.The petition is accordingly disposed of..

After the approval of the Lt. Governor, orders dated 17.2.2010 were

passed approving these guidelines.

14. No doubt, the guidelines have been revised by the Government inconsultation with the Member Secretary, DLSA and these were placed before

the Court in the aforesaid writ petition as well. However, there was no

specific consideration to the validity of certain clauses of these guidelines

which is the issue raised in the present petition. Therefore, learned counsel

for the respondent may not be right in submitting that even the validity of

these guidelines on merits was approved by this Court and, therefore, said

guidelines cannot be challenged at all. We are of the opinion that this Court

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would be entitled to examine the validity of portion of the guidelines relating

to furlough as raised by the petitioners.

Parole and Furlough: Meaning and purpose:

15. Guidelines relate to parole as well as furlough. There is a subtledistinction between the two which has been explained by the Courts from

time to time. A parole can be defined as conditional release of prisoners i.e.

an early release of a prisoner, conditional on good behaviour and regular

reporting to the authorities for a set period of time. It can also be defined as a

form of conditional pardon by which the convict is released before the

expiration of his term. Thus, the parole is granted for good behaviour on the

condition that parolee regularly reports to a supervising officer for a specified

period. Under the aforesaid guidelines, such a release of the prisoner is

temporarily on some basic grounds. It is to be treated as mere suspension of

the sentence for time being, keeping the quantum of sentence intact. Release

on parole is designed to afford some relief to the prisoners in certain specified

exigencies. Such paroles are normally granted in certain situations some of

which may be as follows:-

(i) A member of the prisoners family has died or isseriously ill or the prisoner himself is seriously ill; or

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(ii) The marriage of the prisoner himself, his son, daughter,grandson, grand daughter, brother, sister, sisters son or

daughter is to be celebrated; or

(iii) The temporary release of the prisoner is necessary forploughing, sowing or harvesting or carrying on any other

agricultural operation o his land or his fathers undivided

land actually in possession of the prisoner; or

(iv) It is desirable to do so for any other sufficient cause(v) Parole can be granted only after a portion of sentence is

already served

(vi) If conditions of parole are not abided by the parolee hemay be returned to serve his sentence in prison, such

conditions may be such as those of committing a new

offence

(vii) Parole may also be granted on the basis of aspects relatedto health of convict himself.

16. In the Guidelines, 2010 two kinds of paroles are mentioned, namely,custody parole and regular parole. The circumstances in which custody

parole can be granted are stipulated in Clause 5 and the circumstances for

grant of regular parole is stipulated in clause 9 which are as under:-

5. Custody Parole- Custody parole would be granted inemergent circumstances as follows:5.1 Death of a family member;

5.2 Marriage of a family member;5.3 Serious illness of a family member; or

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5.4 Any other emergent circumstances.

x x x

9. Regular Parole: it would be open to the Government to

consider applications for parole on other grounds such as:-9.1 Serious illness of a family member;

9.2 Critical conditions in the family on account of accident ordeath of a family member;

9.3 marriage of any member of the family of the convict;9.4 Deliver of a child by the wife of the convict if there is no

other family member to take care of the spouse at home;

9.5 Serious damage to life or property of the family of theconvict including damage caused by natural calamities.

9.6 To maintain family and social ties

9.7 To pursue the filing of a Special Leave petition beforethe Supreme Court of India against a judgment delivered by theHigh Court convicting or upholding the conviction, as the case

may be.

17. Bail and parole have different connotation in law. Bail is granted to aperson who has been arrested in a non-bailable offence and has been

convicted of an offence after trial. The effect of granting bail is to release the

accused from interment custody though the Court would still retain

constructive control over him through sureties. Parole, on the other hand, is

the release of a person from the detention of custody even though substantial

legal effect may be the same as bail. It is a temporary release from custody

which does not suspend the sentence or period of detention.

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18. Furlough, on the other hand, is a brief release from the prison. It isconditional and is given in case of long term imprisonment. The period of

sentence spent on furlough by the prisoners need not be undergone by him as

is done in the case of parole. Furlough is granted as a good conduct

remission. A convict literally speaking, must remain in jail for the period of

sentence or for rest of his life in case he is a life convict. It is in this context

that his release from jail for a short period has to be considered as an

opportunity afforded to him not only to solve his personal and family

problems but also to maintain his links with society. Convicts too must

breathe fresh air for atleast some time provided they maintain good conduct

consistently during incarceration and show a tendency to reform themselves

and become good citizens. Thus, redemption and rehabilitation of such

prisoners for good of societies must receive due weightage while they are

undergoing sentence of imprisonment.

19. The Supreme Court through various pronouncements has laid down thedifference between parole and furlough. Some of them are as follows:-

(i) Both parole and furlough are conditional release.(ii) Parole can be granted in case of short term imprisonment

whereas in furlough it is granted in case of long term

imprisonment.

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(iii) Duration of parole extends to one month where as in thecase of furlough; it extends to 14 days maximum.

(iv) Parole is granted by Divisional Commissioner andfurlough is granted by Deputy Inspector General Prison.

(v) For parole specific reason is required where as furloughis meant for breaking the monotony of imprisonment.

(vi) The term of imprisonment is not included in thecomputation of the term of parole, where as it is vice-

versa in furlough.(vii) Parole can be granted a number of times whereas there is

limitation in the case of furlough.

(viii) Since furlough is not granted for any particular reason itcan be denied in the interest of the society.

(See also State ofMaharashtraVs. Suresh Panduram, 2006, AIR SC 2471,

State of H aryana and Ors. Vs. Mohinder Singh, 2000 (3) SCC 394)

20. Further, in the land mark judgment ofCharanji t LalVs. State of Delhi28 (1985) DLT 92 it was held:-

(i) The four main objectives which a state intends to achieveby punishing an offender are-Deterrence, prevention,Retribution and Reformation.

(ii) Life convicts release from jail off and on for shortperiods has to be considered and opportunities have to be

afforded to them not only to solve their personal and

family problems but also to maintain their links with

society.

(iii) They must breathe fresh air for at least sometimeprovided, of course, they maintain good conductconsistently during incarceration and they show a

tendency to reform them and become good citizens.

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(iv) Redemption and rehabilitation of such prisoners for thegood of the society must receive due weight while theyare undergoing sentence of imprisonment.

Relevant Considerations governing grant of Furlough:

21. What follows from the above is that the four main objects whichpunishment of an offender by the state is intended to achieve are deterrence,

prevention, retribution and reformation. There has been substantial diversion

from the previously existing popular concept of retribution. Of late the

focus has shifted upon the reformation. The earlier criminal law concept of

an eye for eye and a tooth for tooth has been replaced by a more humane

concept which emphasizes upon the re-allocation of an accused into the

society. The concept of parole and furlough are in fact a step towards the

accomplishment of this very purpose.

22. The provisions of parole and furlough provide for a humanisticapproach towards those lodged in jails. Main purpose of such provisions is to

afford to them an opportunity to solve their personal and family problems and

to enable them to maintain their links with society. Even citizens of this

country have a vested interest in preparing offenders for successful re-entry

into society. Those who leave prison without strong networks of support,

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without employment prospects, without a fundamental knowledge of the

communities to which they will return, and without resources, stand a

significantly higher chance of failure. When offenders revert to criminal

activity upon release, they frequently do so because they lack h

Documents

PUCL v State of Haryana -PIL Challenging Haryana Prisoners Good Conduct Amendment Act, 2012