JOSEPHversusTHE STATE OF KERALA & ORS.

                  [2023] 12 S.C.R. 505 : 2023 INSC 843



                              CASE DETAILS

                                   JOSEPH
                                       v.
                   THE STATE OF KERALA & ORS.
               (Writ Petition (Criminal) No(s). 520 of 2022)
                           SEPTEMBER 21, 2023
       [S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]

                               HEADNOTES

      Issue for consideration: Whether the writ petition filed by the
petitioner seeking appropriate direction to the State Government, to
prematurely release him, having been in custody-actual imprisonment for
over 26 years, and served a sentence of over 35 years including over 8
years of remission earned, for offence punishable u/ss. 302 and 392 IPC,
should be allowed.
      Premature release – Convict served over 26 years in actual
imprisonment and served 35 years of sentence including 8 years of
remission earned for offences punishable u/ss. 302 and 392 – Case
rejected for premature release thrice by the State Government – Writ
petition seeking direction to the State Government to prematurely
release him:
      Held: Inflexible guidelines can result in the real danger of overlooking
the reformative potential of each individual convict – Grouping types of
convicts, based on the offences they were found to have committed, as a
starting point, may be justified, however, prison laws in India read with Arts.
72 and 161 encapsulate a strong underlying reformative purpose – Insistence
of guidelines, and denial to consider the real impact of prison good behavior,
and other relevant factors results in violation of Art. 14 – Excluding the
relief of premature release to prisoners who have served extremely long
periods of incarceration, not only crushes their spirit, and instils despair, but
signifies society’s resolve to be harsh and unforgiving – Idea of rewarding,
a prisoner for good conduct is entirely negated – r. 376 of the 2014 Rules

                                      505
506          SUPREME COURT REPORTS                        [2023] 12 S.C.R.


prescribes that prisoners shall be granted remission for keeping peace
and good behaviour in jail – Redirecting the petitioner who has already
undergone over 26 years of incarceration and over 35 years of punishment
with remission, to undergo, again, consideration before the Advisory Board,
and thereafter, State Government for premature release, would be cruel –
Petitioner has earned over 8 years of remission, thus demonstrates good
conduct in jail – Discussions of the Jail Advisory Board are also positive
and shows that he is a reformed inmate – Thus, in the interest of justice,
issuance of direction to release the petitioner – Kerala Prison Rules, 1958
– Kerala Prisons and Correctional Services (Management) Rules, 2014 – rr
462 to 468. [Paras 33-35]
      Remission – Grant of remission – Scope of:
      Held: Blanket exclusion of certain offences, from the scope of grant of
remission, by way of an executive policy, is arbitrary and against the ideals
of reformation that run through the criminal justice system – Penological
goal is of reformation and rehabilitation rather than retribution – Impact
of applying such an executive instruction/guideline would be that any
progress made by a long-term convict would leave them feeling hopeless,
and condemned to an indefinite period of incarceration. [Para 28]
      Remission – Remission policy – Application of:
     Held: Remission policy prevailing on the date of conviction, is to be
applied in a given case, and if a more liberal policy exists on the day of
consideration, then the latter would apply. [Para 19]
     Administrative law – Discretion conferred widely by plenary
statute or statutory rules:
      Held: Cannot be lightly fettered. [Para 29]

       LIST OF CITATIONS AND OTHER REFERENCES

      State of Haryana v. Jagdish [2010] 3 SCR 716; Maru Ram, v. Union of
India [1981] 1 SCR 1196; General Officer Commanding-in-Chief v. Subhash
Chandra Yadav [1988] 3 SCR 62; State of Haryana v. Mahender Singh
[2007] 11 SCR 932; State v. H. Nilofer Nisha (2020) 14 SCC 161:[2020] 1
SCR 456; Ramdas Athawale v. Union of India [2010] 3 SCR 1059; Union
               JOSEPH v. THE STATE OF KERALA                             507


of India v. V. Sriharan [2015] 14 SCR 613; Swamy Shraddananda (2) @
Mural Manohar Mishra v. State of Karnataka [2008] 11 SCR 93; State of
Madhya Pradesh v. Ratan Singh [1976] Supp. 1 SCR 552; Rajan v. The Home
Secretary, Home Department of Tamil Nadu [2019] 6 SCR 1035; State of
Haryana v. Raj Kumar (2021) 9 SCC 292; Rajo v. State of Bihar Judgment
dated 25.08.2023 in Writ Petition (Crl.) No. 252/2023; State of Haryana v.
Mohinder Singh [2000] 1 SCR 698; Sangeet v. State of Haryana [2012] 13
SCR 85; Ram Chander v. State of Chhattisgarh [2022] 4 SCR 1103; U.P.
State Road Transport Corporation & Anr v. Mohd. Ismail & Ors. [1991]
2 SCR 274; Chairman, All India Railway Rec. Board & Ors. v. K. Shyam
Kumar & Ors. [2010] 6 SCR 291 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

    CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Criminal)
No.520 of 2022
                (Under Article 32 of The Constitution of India)
     Appearances:
     Adolf Mathew, Sanjay Jain, Advs. for the Petitioner.
    Jaideep Gupta, Sr. Adv., Harshad V Hameed, Dileep Poolakkot,
Subhash Chandran K.R., Mrs. Ashly Harshad, Advs. for the Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     S. RAVINDRA BHAT, J.
      1. The petitioner, currently serving a life imprisonment sentence for
a crime committed in 1996, punishable under Sections 302 and 392 of the
Indian Penal Code (hereafter “IPC”) approaches this court seeking to enforce
his right under Article 32 of the Constitution of India. He seeks appropriate
direction to the state government, to prematurely release him, having been in
custody (i.e., actual imprisonment) for over 26 years, and served a sentence
of over 35 years (including over 8 years of remission earned).
508           SUPREME COURT REPORTS                          [2023] 12 S.C.R.


      Facts and background
       2. It was alleged that on 16.09.1994, the petitioner had gone to his
sister-in-law’s (the deceased victim) place of work, and on the false pretext
that her mother was seriously ill and had been admitted to the hospital, taken
her away with the permission of the in-charge of the convent where she
worked. The prosecution case was that he had her walk along the railway
line and at a desolate place, allegedly raped and robbed her of the ornaments
she was wearing, before laying her on the tracks to be runover by a passing
train.
      3. The petitioner was arrested on 09.10.1994 in connection with the
case and remained in custody till the trial court1 acquitted him of all charges
on 23.03.1996. The High Court2 reversed the acquittal, and convicted the
petitioner by its judgment dated 06.01.1998 for the offences punishable
under Section 302, 376 and 392 IPC. The High Court sentenced him to life
imprisonment for the offence under Section 302, and rigorous imprisonment
of 7 years on each count of Section 376 and 392 IPC, which were to run
concurrently. This court3, however, on 27.04.2000 set aside the conviction
under Section 376 IPC and confirmed the conviction and sentence under
Sections 302 and 392 IPC only.
      4. Pursuant to an order of this court, the respondent-state filed an
affidavit indicating the computation of his period of sentence undergone,
the status of his plea for remission to be granted, as well as filed the state’s
various remission policies (as amended from time to time). The petitioner
completed 1 year 5 months and 10 days of custody as an undertrial, before
his acquittal by the trial court. After his conviction by the High Court,
he surrendered to the sentence on 28.01.1998, and remained in custody
thereafter. On 13.08.2010, he completed 14 years of actual imprisonment
(including the time spent as an undertrial). And on 13.08.2016, he completed
20 years of actual imprisonment. The custody certificate produced in his
writ petition, confirms that he completed actual imprisonment of 25 years
9 months and 26 days on 07.06.2022, (i.e., he completed 25 years actual


1 By judgment dated 23.03.1996 passed by the Sessions Court, Thrissur in S.C. No.
73/1995.
2 By judgment dated 06.01.1998 passed by the Kerala High Court in Crl. A. No.
511/1996.
3 By judgment dated 27.04.2000 passed by this Court in Crl. A. No. 656/1998.
                  JOSEPH v. THE STATE OF KERALA                                    509
                      [S. RAVINDRA BHAT, J.]

imprisonment on 13.08.2021). However, in terms of the state’s counter
affidavit, as on 31.01.2023, he completed 25 years 10 months 3 days of actual
imprisonment and has earned 8 years 4 months and 16 days in remission.
Regardless of the arithmetical inconsistencies, it is not contested that he has
completed over 26 years of actual imprisonment.
      5. In the course of hearing, it was pointed out that the petitioner’s case
had been considered by the Advisory Committee/Jail Advisory Board under
prevailing Rules4 on nine occasions of which three times, the Board had
recommended his premature release. However, the state government had
rejected his request on all three occasions. Pursuant to a direction by this
court, the State has placed on record each of the Minutes of the Meeting/
Reports of the Advisory Boards, containing recommendations (positive
and negative) relating to the petitioner, and the rejection orders passed by
the State on the three occasions wherein the Board recommended release.
These are summarized below:
          ADVISORY COMMITTEE/JAIL ADVISORY BOARD
 Date & Statutory
 provisions/Rules Consideration of petitioner’s case and reasoning
 applied
 10.08.2011       Petitioner’s case unanimously rejected as it was a case of
 [1958 Rules]          premediated murder.
 27.08.2013     Based on the police report and manner of commission of
                offence, the three official members opposed recommendation,
 [1958 Rules]
                while the three non-official members recommended release.
                Committee rejected proposal.
 30.06.2014     Listed under separate heading ‘cases of prisoners who have
                been convicted for offences against women but are not
 [Both 1958 and
                premediated and thus coming under purview of government
 2014 Rules]
                directions’. The District Probation officer recommended
                release, while the police opposed. Recorded that he is hard
                working, disciplined, and reformed and hence, Petitioner’s
                case was deferred to the next meeting given that he had
                completed over 17 years of imprisonment.




4 Kerala Prison Rules, 1958 (hereafter ‘1958 Rules’) and Kerala Prisons and Correctional
Services (Management) Rules, 2014 (hereafter ‘2014 Rules’).
510            SUPREME COURT REPORTS                            [2023] 12 S.C.R.



29.09.2015         Same observations/conclusions as last date of consideration;
                   petitioner’s case was unanimously directed to be considered
[2014 Rules]
                   afresh after receiving detailed reports from the probation
                   officer and police and the case was deferred for consideration
                   till November 2015.
08.01.2016         Petitioner’s case rejected on the ground that the police report
[2014 Rules]       did not recommend release.
10.01.2017         Police report did not recommend release, while the reports
                   of the probation officer and jail superintendent respectively,
[2014 Rules]
                   supported release. After a detailed discussion of the police
                   report, charges levelled, and his life inside and outside prison
                   – probation officer and non-official members supported
                   release. Thereafter, the Board unanimously recommended
                   the petitioner’s case for premature release.
13.08.2019         District Probation officer recommended premature release,
                   while the police report again recommended against release.
[2014 Rules]
                   Considering his life on parole, character in prison, and
                   period undergone, case was deferred for consideration in
                   next meeting.
26.02.2020          Considering the long term imprisonment undergone, age of
                    convict, character in prison, family background and situation,
[2014 Rules]
                    Petitioner’s case unanimously recommended for release.
07.03.2022          Petitioner’s case was discussed in detail. District Judge on the
                    Board, pointed out that the Supreme Court had directed that
[2014 Rules]
                    persons who had committed murder of women and children
                    and those convicted under NDPS need not be considered for
                    release. The Chairman also opined that those convicted for
                    murder of women and children, and murder with rape, ought
                    not to be recommended. However, a non-official member
                    pointed out that he had undergone over 24 years of actual
                    imprisonment, had been considered by the Board 5 times and
                    2 times been recommended for release, and may be given
                    special consideration for release on humanitarian grounds.
                    Given his age and long incarceration, the Petitioner’s case
                    was thereafter recommended unanimously for premature
                    release.
                   STATE GOVERNMENT DECISION
Date of decision    Government’s decision relating to the petitioner
                 JOSEPH v. THE STATE OF KERALA                                     511
                     [S. RAVINDRA BHAT, J.]


 06.07.2019           Pursuant to Advisory Board’s recommendation dated
                      10.01.2017, Petitioner’s case (along with the other three
                      convicts) was rejected without assigning any reasons.
 22.04.2021           Pursuant to Advisory Board’s recommendation dated
                      26.02.2020, file relating to all 20 persons recommended for
                      release, returned for further action.
 01.09.2022           Pursuant to Advisory Board’s recommendation dated
                      07.03.2022, petitioner’s case (along with 7 others) was
                      rejected without assigning any reasons.

     6. The State in its counter affidavit explained its position - that while
the petitioner has been considered for premature release 9 times, his case
has been rejected repeatedly because:
     “while considering proposal for premature release of prisoners, the
     consistent stand now being adopted by the Government is that persons
     involved in the murder of women and children and persons convicted
     in offences relating to POCSO cases shall not be granted premature
     release. Since the petitioner involved in the murder of a woman his
     premature release was rejected by Government in accordance with
     the above stand.”
                                                                (emphasis supplied)
      Further, that in 2020, general guidelines were to be framed by a
specially constituted committee5 for determining the eligibility of prisoners
with regards to grant of premature release. This committee finally proposed
premature release of 67 convicts (from those who had earlier been rejected
for whatever reason) after assessing their individual cases. The state
government by its proceeding dated 20.04.2022, approved the proposal
excluding certain convicts who had been involved in: most cruel murder,
committed murder of woman and children, or murder with rape, and those
undergoing treatment for mental illness, whose relatives were reluctant to
receive them. These restrictions, along with other more detailed guidelines,



5    This committee consisted of Additional Chief Secretary Home & Vigilance Department
    as Chairman, Law Secretary, and Director General of Prions and Correctional Services
    as Members.
512            SUPREME COURT REPORTS                       [2023] 12 S.C.R.


have been incorporated in a government order6 dated 04.06.2022 issued by
the Home Department of the State of Kerala.
      7. On 01.09.2022, the state government rejected for the third time, the
Advisory Board’s recommendation to release the petitioner. Aggrieved, the
petitioner has preferred the present writ petition.
       Contentions of parties
      8. Mr. Adolf Mathew, learned counsel appearing on behalf of the
petitioner, challenged the state government’s repeated rejection of his plea
for premature release. It was pointed out that the remission policy prevailing
on the date of the conviction would have to apply. Attention was drawn to
Rule 545A of the 1958 Rules which stipulates release can be considered after
14 years; Rule 216(1), 244(2) and 299(c) of the 1958 Rules which state that
the inmate shall be released after completion of 20 years of sentence; and
the recommendations of the National Human Rights Commission (NHRC)
which prescribes mandatory release after 25 years of sentence. Furthermore,
even in terms of Rule 377 of the new Prison Rules, 2014, the petitioner
is entitled to release after 20 years. It was argued that since the petitioner
has not only completed 14 years or 20 years, but even 25 years of actual
imprisonment, at this juncture - regardless of which rules are applied, it was
manifestly illegal to keep him incarcerated in perpetuity.
      9. Mr. Mathew strongly opposed the state’s policy dated 14.06.2022
(and executive instruction dated 20.04.2022 cited in the state’s counter
affidavit) which listed certain crimes, the commission of which put the
convict beyond the scope for grant of remission. The executive instruction
(which explicitly prohibits the release of a prisoner involved in the “murder
of a woman”), it was argued – not only came after his completion of 25 years
of incarceration, but in any case could not override the statutory provisions.
Counsel submitted that the petitioner had a legal right to be considered for
remission given the safeguards of a convict under Articles 20 and 21 of the
Constitution of India; this legal right was guaranteed by the Prison Act, and
the Rules framed under it.



6     G.O.(Ms.) NO. 116/2022/HOME dated 14.06.2022.
                 JOSEPH v. THE STATE OF KERALA                             513
                     [S. RAVINDRA BHAT, J.]

      10. Relying on replies received (under the Right to Information Act,
2005) from the respective jails in which the petitioner has been lodged –
counsel demonstrated that from 2000-2016, a total of 28 convicts sentenced
to life imprisonment, who were involved in the murder of a woman, had
been granted premature release. However, despite being recommended
three times by the Advisory Board with detailed remarks on his reformation,
the State government had rejected his case for premature release without
assigning any reasoning, in its orders. This, it was argued, was grounds for
setting aside these orders.
       11. Lastly, counsel pointed to material produced by the respondent state
itself, to demonstrate that the Jail Advisory Board had found the petitioner,
who is aged 67 years old, to be hardworking, disciplined, and reformed,
and prayed for his premature release.
     12. To supplement his submissions, counsel placed reliance on various
judgments of this court, including – State of Haryana v. Jagdish7, Maru
Ram, v. Union of India8, General Officer Commanding-in-Chief v. Subhash
Chandra Yadav9, State of Haryana v. Mahender Singh10, and State v. H.
Nilofer Nisha11.
      13. Mr. Jaideep Gupta, learned senior counsel, appearing on behalf
of the state, submitted that the petitioner cannot claim a fundamental right
to be released on remission, and that the prayer sought in the writ petition
– for this court’s direction to the government to release him – was simply
not maintainable.
      14. Counsel argued that grant of remission, is solely at the executive’s
discretion, and an act of mercy, granted on account of good conduct and term
of imprisonment. It is not an indefeasible right; rather the convict only has a
right to be considered for remission, which he had been, in the present case.
The decision, however, of whether to be granted remission, was an act of
exercising discretion which solely fell within the domain of the executive.


7    [2010] 3 SCR 716
8    [1981] 1 SCR 1196
9    [1988] 3 SCR 62
10   [2007] 11 SCR 932
11   (2020) 14 SCC 161
514          SUPREME COURT REPORTS                        [2023] 12 S.C.R.


     15. Mr. Gupta drew attention to the nature of the crime – that it was
premediated and cold-blooded murder, with robbery. The assault of an
innocent young woman by someone she reposed trust in, her brother-in-law
no less, who proceeded to rob her belongings and lay her to her death in
such a horrific manner, it was argued was one which shocked the collective
conscience of society. Mr. Gupta submitted that these factors, which no doubt
weighed on the sentencing court (which did not grant the death penalty),
must also weigh on the state authority granting remission, to guide its
exercise of discretion.
      16.Counsel for the State, relied on the following judgments to
persuade this court – Ramdas Athawale v. Union of India12, Union of India
v. V. Sriharan13, State of Haryana v. Mahender Singh (supra), Swamy
Shraddananda (2) @ Mural Manohar Mishra v. State of Karnataka 14, State
of Madhya Pradesh v. Ratan Singh 15 and Rajan v. The Home Secretary,
Home Department of Tamil Nadu16.
      Analysis and conclusion
      A. Applicable statutory provisions, rules, etc.
        17. The Travancore-Cochin Prison Act came into force on 06.06.1950.
By virtue of Sections 3(5) and 59(4), the state government enacted the
1958 Rules on 26.07.1958. The Kerala Prisons and Correctional Services
(Management) Act, 2010 [hereafter ‘2010 Act’] came into force on
12/14.05.2010. By virtue of Section 102(2) of this Act (the savings clause)
the 1958 Rules were to continue till the commencement of the new rules
(i.e., the 2014 Rules), on 06/23.05.2014. On 14.06.2022, a government order
was issued containing general guidelines on premature release, classifying
prisoners such that those who had committed certain offences could not
be released prematurely, while others, could only be considered after 25
years. This government order also, incorporated an executive instruction
dated 20.04.2022 which excluded those involved in “murder of a woman”


12 [2010] 3 SCR 1059
13 [2015] 14 SCR 613
14 [2008] 11 SCR 93
15 [1976] Supp. 1 SCR 552
16 [2019] 6 SCR 1035
                  JOSEPH v. THE STATE OF KERALA                                      515
                      [S. RAVINDRA BHAT, J.]

among other crimes, from the grant of premature release. Section 433-A
of the CrPC, is also applicable to the extent that it forecloses the option of
statutory remission until the convict who has been convicted for an offence
punishable by life imprisonment (or commuted death sentence) has served
14 years of actual imprisonment.
      18. Section 7717 of the 2010 Act empowers the state government
to, either suo moto or on recommendation of an Advisory Committee,
prematurely release well-behaved, long term convicted prisoners with the
objective of their better reformation and rehabilitation, as per prescribed
rules. Rule 462 to 468 of the 2014 Rules, detail the procedure to be followed
by the Advisory Committee while considering convicts for premature
release. Whenever a prisoner completes 14 years actual imprisonment, they
become eligible for consideration for premature release [ref: Rule 464(iv)18].
The Advisory Committee/Board considers their case in detail, and make
recommendations to the state government, which is empowered under Rule
468 of the 2014 Rules, to admit or reject the said recommendations.
     19. A reading of the observations of this court in State of Haryana v.
Jagdish19, which was followed in State of Haryana v. Raj Kumar20, makes
the position of law clear: the remission policy prevailing on the date of
conviction, is to be applied in a given case, and if a more liberal policy exists
on the day of consideration, then the latter would apply. This approach was
recently followed by this court in Rajo v. State of Bihar21 as well.




17 “77. Premature release. – (1) Well behaved, long term convicted prisoners may be
prematurely released with the objective of their reformation and rehabilitation, by the
Government, either suo moto or on the recommendations of an Advisory Committee as may
be prescribed.
(2) The Advisory Committee constituted as per sub-section (1) shall have the powers and
duties, as may be prescribed”.
18 As per sub-clause (iv) to Rule 464 of the 2014 Rules, the Advisory Board is to consider
life convicts on completion of 10 years imprisonment (with remission), unless excluded by
Section 433-A CrPC, in which case they are to be considered after completion of 14 years
actual imprisonment.
19 [2010] 3 SCR 716 [paras 35, 43].
20 (2021) 9 SCC 292 [para 16].
21 Judgment dated 25.08.2023 in Writ Petition (Crl.) No. 252/2023 [para 23].
516            SUPREME COURT REPORTS                        [2023] 12 S.C.R.


      20.A five-judge bench of this court, in Maru Ram, v. Union of India22,
when considering application of Section 433-A CrPC, when the trial court
had acquitted an accused prior to its insertion, but convicted by the appellate
court subsequent to Section 433-A coming into force, held:
       “[…] When a person is convicted in appeal, it follows that the appellate
       Court has exercised its power in the place of the original court and
       the guilt, conviction and sentence must be substituted for and shall
       have retroactive effect from the date of judgment of the trial Court.
       The appellate conviction must relate back to the date of the trial
       Court’s verdict and substitute it. In this view, even if the appellate
       Court reverses an earlier acquittal rendered before Section 433-A
       came into force but allows the appeal and convicts the accused, after
       Section 433-A came into force, such persons will also be entitled to the
       benefit of the remission system prevailing prior to Section 433-A on the
       basis we have explained. An appeal is a continuation of an appellate
       judgment as a replacement of the original judgment.”
      21. Therefore, applying the principles laid down in the decisions
discussed above, the date of conviction, though actually on 06.01.1998 – i.e.,
the day of the High Court judgment, is deemed to relate back to the date of
the trial court judgment, which was delivered on 23.03.1996. On this date
(as was the case even in 1998 when the High Court passed its judgment),
the 1958 Rules were in force.
      22. Much like the 2014 Rules [see Rule 464(iv)], the 1958 Rules
similarly entitle convicts who have completed 14 years, to be considered
for premature release. Rule 545A is extracted below:
       “545A. ‘14-Year Rule’.– The cases of ** prisoners whose aggregate
       sentence is more than 20 years shall be committed together with the
       records specified under Rule 545 for special orders of Government
       as to their premature release or completion of 14 years of sentence
       including remission in each case.
       ** “Provided that where a sentence of imprisonment for life is imposed
       on conviction of a person for an offence for which death is one of the


22    [1981] 1 SCR 1196 [para 20].
                  JOSEPH v. THE STATE OF KERALA                                     517
                      [S. RAVINDRA BHAT, J.]

      punishments provided by law, or where a sentence of death imposed on
      a person has been committed under section 433 of the Code of Criminal
      Procedure, 1973 such persons shall not be considered for release from
      prison unless he has served at least 14 years of imprisonment.”
       23. When it comes to date of release, the 1958 Rules also in various
provisions, fix 20 years, to be the deemed sentence for a convict sentenced
to life imprisonment:
      “216. Date of release when two or more sentences run consecutively.–
      (1) The sentence of all prisoners sentenced to imprisonment for life or to
      more than 20 years imprisonment in the aggregate, or to imprisonment,
      for terms exceeding in the aggregate or to imprisonment, for terms
      exceeding in the aggregate 20 years shall, for the administrative
      purpose of calculation of the normal date of release be deemed to be
      sentence of imprisonment of 20 years….
      244. Tickets to be worn by convicts. – […]
      (2)(b) No other particulars, such as stars denoting health or the life
      shall be entered thereon, and nothing shall be entered on the back
      of the ticket. For convictions under sentence for life date of release
      shall be taken as 20 years from the date of sentence. In the case of
      a convict having a term of alternative imprisonment, the alternative
      date of release should also be shown.
      299. Definitions in these rules. – […]
      (c) The sentence of all prisoners sentenced to imprisonment for life
      or to more than twenty years imprisonment in the aggregate or to
      imprisonment for terms exceeding in the aggregate twenty years
      shall for the purpose of these rules, be deemed to be sentence of
      imprisonment for twenty years.”
     The analogous provision, in relation to ‘deemed’ life imprisonment
sentence, can be found in Rule 37723 of the 2014 Rules.


23 “377. Fixation of Conviction Period – (1) The sentence of all prisoners sentenced
to imprisonment for life or to more than twenty years imprisonment in the aggregate or to
imprisonment for terms exceeding in the aggregate twenty years shall for the purpose of
remission rules, be deemed to be sentence of imprisonment for 20 years.
518            SUPREME COURT REPORTS                               [2023] 12 S.C.R.


      B. Analysing the law in the present factual matrix
      24. Section 99 of the 2010 Act, empowers the state government
to make rules consistent with the Act, and sub-clause (xxxii) pertains
specifically to the authority which may recommend premature release
of prisoners under Section 77. The State government has painstakingly
framed these rules. As per Rule 462 of the 2014 Rules, Jail Advisory
Boards were constituted in each prison, to make recommendations for
the premature release of prisoners. The composition of these Boards
includes – Director General of Prisons and Correctional Services as
Chairman, Superintendent of Prisons as Member Secretary, and the
District Collector, District & Sessions Judge, Commissioner of Police
or District Police Chief, District Probation Officer, and three non-official
members appointed by the government – as members.
      25. This diverse Board consisting of relevant stakeholders, after
having taken a holistic view of the petitioner’s case, recommended his
premature release on three different occasions – 10.01.2017, 26.02.2020, and
07.03.2022. Yet, the state government, has without assigning any reasons
– which could have perhaps demonstrated individual consideration of each
case recommended - simply rejected the same all three times (06.07.2019,
22.04.2021, and 01.09.2022). This is patently unsustainable and warrants
intervention of this court.
      26. That the execution of a sentence, is the sole prerogative of the State/
Executive, which may exercise its discretion as granted constitutionally
(Art. 161 and 72 of the Indian Constitution) and statutorily (Section 432
CrPC, and state enactments), is one that is not in question. However, like
all power – it must be exercised fairly, reasonably and not arbitrarily. 24
     27. While the government order dated 04.06.2022 issued by the State of
Kerala is not directly challenged, it is this court’s considered opinion, that it



(2) A committee shall constituted under Section 72 and sub-section (1) of the Act for the
computation of remission.”
24 In the context of remission and sentencing, see: State of Haryana v. Mohinder Singh
[2000] 1 SCR 698; Sangeet v. State of Haryana [2012] 13 SCR 85; Union of India v. V.
Sriharan [2015] 14 SCR 613; Rajan v. The Home Secretary, Home Department of Tamil
Nadu [2019] 6 SCR 1035; Ram Chander v. State of Chhattisgarh [2022] 4 SCR 1103.
               JOSEPH v. THE STATE OF KERALA                             519
                   [S. RAVINDRA BHAT, J.]

merits comment, and a note of caution. The relevant part of the government
order, is extracted below:
     “I. Category of prisoners who are not be eligible for premature release.
     1. Persons who are sentenced for life imprisonment for offences
        against the security of the State.
     2. Person who are sentenced for life for murder along with rape of
        a child below 16 years of age charged with or without POCSO
        Act 2012.
     3. Persons convicted under Narcotic Drugs and Psychotropic
        Substances Act.
     4. Persons involved in cases in which the Court expressly declares
        that the prisoner shall not be granted special remission or amnesty.
     5. Persons convicted and sentenced by the courts of other States or
        UTs.
     II. Category of prisoners eligible only after completing 25 years of
     sentence including all kinds of remission.
     1. Convicts who have been imprisoned for life for murder with rape,
        murder with dacoity, murder involving any offence under the
        protection of Civil Rights Act 1955, murder for dowry, murder of
        a child below 14 years of age, multiple murder, murder committed
        after conviction while inside jail, murder during parole, murder
        in terrorist incident, murder in smuggling operation. Murder of
        a public servant on duty, murder with robbery and rape of child
        below 14 years of age.
     2. Gangsters, contract killers, smugglers, drug traffickers awarded
        life imprisonment for murders.
     3. Convicts whose death sentence has been commuted to life
        imprisonment by Hon’ble President of India or Hon’ble Governor.
     The prisoners with the following age group and completed sentence
     and favourable reports from the Probation Officers are eligible under
     this category:-
520             SUPREME COURT REPORTS                      [2023] 12 S.C.R.


           (a)    Prisoners who have attained the age of 55 and completed
                  sentence of 25 years including remission; OR
           (b)    Prisoners who have completed 23 years of actual sentence.
      III. Category of prisoners eligible after 20 years of sentence including
      remission
      All prisoners who do not come under category I and II shall be eligible
      for premature release after 20 years of sentence including remission
      irrespective of their age, but on the following conditions.
      […]”
     Further, while considering the premature release of certain other
convicts recommended by the Committee, the state government
      “decided to approve the proposal, excluding the following category
      of prisoners:
           1.     Persons involved in most cruel murder.
           2.     Persons who committed murder of women and children,
                  persons who committed murder with rape.
           3.     Among the prisoners who are undergoing treatment for
                  mental illness, the prisoners whose relatives are reluctant
                  to receive them”.
     Thus, incorporating in the general guidelines, the three excluded
categories as they appeared in the earlier executive instruction dated
20.04.2022.
      28. To issue a policy directive, or guidelines, over and above the Act
and Rules framed (where the latter forms part and parcel of the former),
and undermine what they encapsulate, cannot be countenanced. Blanket
exclusion of certain offences, from the scope of grant of remission, especially
by way of an executive policy, is not only arbitrary, but turns the ideals
of reformation that run through our criminal justice system, on its head.
Numerous judgments of this court, have elaborated on the penological goal
of reformation and rehabilitation, being the cornerstone of our criminal
justice system, rather than retribution. The impact of applying such an
executive instruction/guideline to guide the executive’s discretion would be
                JOSEPH v. THE STATE OF KERALA                              521
                    [S. RAVINDRA BHAT, J.]

that routinely, any progress made by a long-term convict would be rendered
naught, leaving them feeling hopeless, and condemned to an indefinite
period of incarceration. While the sentencing courts may, in light of this
court’s majority judgment in Sriharan (supra), now impose term sentences
(in excess of 14 or 20 years) for crimes that are specially heinous, but not
reaching the level of ‘rarest of rare’ (warranting the death penalty), the state
government cannot – especially by way of executive instruction, take on
such a role, for crimes as it deems fit.
      29. It is a well-recognized proposition of administrative law that
discretion, conferred widely by plenary statute or statutory rules, cannot
be lightly fettered. This principle has been articulated by this court many a
time. In U.P. State Road Transport Corporation & Anr v. Mohd. Ismail &
Ors.25, this court observed:
     “It may be stated that the statutory discretion cannot be fettered by
     self-created rules or policy. Although it is open to an authority to
     which discretion has been entrusted to lay down the norms or rules
     to regulate exercise of discretion it cannot, however, deny itself the
     discretion which the statute requires it to exercise in individual cases.”
     30. Likewise, in Chairman, All India Railway Rec. Board & Ors. v.
K. Shyam Kumar & Ors.26 this court explained the issue, in the following
manner:
     “Illegality as a ground of judicial review means that the decision
     maker must understand correctly the law that regulates his decision
     making powers and must give effect to it. Grounds such as acting
     ultra vires, errors of law and/or fact, onerous conditions, improper
     purpose, relevant and irrelevant factors, acting in bad faith, fettering
     discretion, unauthorized delegation, failure to act etc., fall under the
     heading “illegality”. Procedural impropriety may be due to the failure
     to comply with the mandatory procedures such as breach of natural
     justice, such as audi alteram partem, absence of bias, the duty to act
     fairly, legitimate expectations, failure to give reasons etc.”



25   [1991] 2 SCR 274
26   [2010] 6 SCR 291
522          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


      31. The latitude the Constitution gives to the executive, under Articles
72 and 162, in regard to matters such as remission, commutation, etc,
therefore, cannot be caged or boxed in the form of guidelines, which are
inflexible.
      32. This court’s observations in State of Haryana v. Mahender Singh27
are also relevant here:
      “38. A right to be considered for remission keeping in view the
      constitutional safeguards under Articles 20 and 21 of the Constitution
      of India, must be held to be a legal one. Such a legal right emanates
      from not only the Prisons Act but also from the Rules framed thereunder.
      39. It is now well-settled that any guidelines which do not have any
      statutory flavour are merely advisory in nature. They cannot have the
      force of a statute. They are subservient to the legislative act and the
      statutory rules.”
                                                        (emphasis supplied)
      33. Classifying - to use a better word, typecasting convicts, through
guidelines which are inflexible, based on their crime committed in the
distant past can result in the real danger of overlooking the reformative
potential of each individual convict. Grouping types of convicts, based on
the offences they were found to have committed, as a starting point, may
be justified. However, the prison laws in India – read with Articles 72 and
161 - encapsulate a strong underlying reformative purpose. The practical
impact of a guideline, which bars consideration of a premature release
request by a convict who has served over 20 or 25 years, based entirely
on the nature of crime committed in the distant past, would be to crush
the life force out of such individual, altogether. Thus, for instance, a 19 or
20 year old individual convicted for a crime, which finds place in the list
which bars premature release, altogether, would mean that such person
would never see freedom, and would die within the prison walls. There is
a peculiarity of continuing to imprison one who committed a crime years
earlier who might well have changed totally since that time. This is the
condition of many people serving very long sentences. They may have


27 (2007) 13 SCC 606
                 JOSEPH v. THE STATE OF KERALA                                   523
                     [S. RAVINDRA BHAT, J.]

killed someone (or done something much less serious, such as commit a
narcotic drug related offences or be serving a life sentence for other non-
violent crimes) as young individuals and remain incarcerated 20 or more
years later. Regardless of the morality of continued punishment, one may
question its rationality. The question is, what is achieved by continuing to
punish a person who recognises the wrongness of what they have done,
who no longer identifies with it, and who bears little resemblance to the
person they were years earlier? It is tempting to say that they are no longer
the same person. Yet, the insistence of guidelines, obdurately, to not look
beyond the red lines drawn by it and continue in denial to consider the real
impact of prison good behavior, and other relevant factors (to ensure that
such individual has been rid of the likelihood of causing harm to society)
results in violation of Article 14 of the Constitution. Excluding the relief of
premature release to prisoners who have served extremely long periods of
incarceration, not only crushes their spirit, and instils despair, but signifies
society’s resolve to be harsh and unforgiving. The idea of rewarding, a
prisoner for good conduct is entirely negated.
      34. In the petitioner’s case, the 1958 Rules are clear – a life sentence, is
deemed to be 20 years of incarceration. After this, the prisoner is entitled to
premature release.28 The guidelines issued by the NHRC pointed out to us by
the counsel for the petitioner, are also relevant to consider – that of mandating
release, after serving 25 years as sentence (even in heinous crimes). At this
juncture, redirecting the petitioner who has already undergone over 26 years
of incarceration (and over 35 years of punishment with remission), before
us to undergo, yet again, consideration before the Advisory Board, and
thereafter, the state government for premature release – would be a cruel
outcome, like being granted only a salve to fight a raging fire, in the name
of procedure. The grand vision of the rule of law and the idea of fairness is
then swept away, at the altar of procedure - which this court has repeatedly
held to be a “handmaiden of justice”.
     35. Rule 376 of the 2014 Rules prescribes that prisoners shall be
granted remission for keeping peace and good behaviour in jail. As per the
records produced by the State, the petitioner has earned over 8 years of


28 See also this court’s order dated 11.10.2018 in Criminal Appeal No. 276-278/2010.
524            SUPREME COURT REPORTS                           [2023] 12 S.C.R.


remission, thus demonstrating his good conduct in jail. The discussions in
the minutes of the meetings of the Jail Advisory Board are also positive and
find that he is hardworking, disciplined, and a reformed inmate. Therefore, in
the interest of justice, this court is of the opinion, that it would be appropriate
to direct the release of the petitioner, with immediate effect. It is ordered
accordingly.
     36. The writ petition, thus, stands allowed in the above terms. Pending
applications, if any, are disposed of.


Headnotes prepared by:                                         Writ petition allowed.
Nidhi Jain