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

                         [2020] 8 S.C.R. 997                             997


NATIONAL ALLIANCE FOR PEOPLE’S MOVEMENTS & ORS.                          A
                                  v.
            THE STATE OF MAHARASHTRA & ORS.
        (Special Leave Petition (Criminal) No. 4116 of 2020)
                       SEPTEMBER 22, 2020                                B
           [S. A. BOBDE CJI, A. S. BOPANNA AND
                V. RAMASUBRAMANIAN, JJ.]
       Prisoners – Pandemic – Novel Coronavirus (Covid-19) –
Decongestion of prisons – The Supreme Court had taken note of
                                                                         C
the pandemic situation and registered a Suo Motu Writ Petition (Civil)
No. 1/2020 and in that context also referred to the decision taken
by the government of India to issue an advisory regarding social
distancing – The Court directed that each State/Union Territory shall
constitute a High Powered Committee (HPC), to determine which
class of prisoners can be released on parole or an interim bail for      D
such period as may be thought appropriate – Pursuant to the
direction, a High-Powered Committee was constituted in respect of
the prisons in the State of Maharashtra – As per the guidelines, the
Committee has classified the inmates of the prisons, broadly into
three categories, viz. (i) undertrial prisoners/convicted persons who
                                                                         E
are facing trial or convicted to the maximum punishment of 7 years
or less, (ii) The convicted persons whose sentence is above 7 years
and (iii) The undertrial prisoners or convicted persons who are
booked for serious economic offences/ bank scams and offences
under Special Acts such as MCOC, PMLA etc. – The petitioners
alleged discrimination in categorisation – The High Court held that      F
the decision of HPC does not call for interference except to the
extent of observations that were made in paragraph 36 of the order
– On appeal, held: The said categorisation cannot be considered
as unreasonable since at the first instance, the categorisation is
required by the Court for grant of interim bail if such undertrial/
                                                                         G
convicted person is seeking bail purely on taking benefit of the
notification issued pursuant to such decision taken by the HPC –
The exclusion made has a reasonable basis and cannot be termed
arbitrary – The present methodology for grant of the interim bail is
with the intention to avoid overcrowding in the unprecedented
                                                                         H
                                 997
998            SUPREME COURT REPORTS                         [2020] 8 S.C.R.


A     circumstance and the grant of bail in the present circumstances is
      an additional benefit to such persons – In that circumstance what
      has been curtailed by the HPC by excluding certain categories is
      only with a view to deny the benefit to certain category of jail inmates
      who are charged with serious offences which as an adverse effect
      on the society at large though the length of the punishment that can
B
      be imposed may be lesser – Such of those persons charged under
      the special enactments or convicted for a period, more than 7 years
      in any event if they are not otherwise disentitled to bail in the normal
      circumstance could still seek bail in accordance with law – All that
      the HPC has denied them is the benefit of seeking interim bail only
C     on the ground that they are entitled to be released in view of the
      Covid-19 situation and no other legal right has been denied – The
      High Court was accordingly justified in its conclusion.
            Dismissing the petition, the Court
            HELD: 1. The very purpose of directing each of the States/
D     Union Territories to constitute a High-Powered Committee is
      that the HPC taking note of the subsisting position in such State
      will take a decision in the matter as the HPC will have the
      wherewithal to secure all details and take a decision. If the said
      aspect is kept in view, it is noticed that by the guideline dated
E     25.03.2020 the Committee in question has categorised the
      undertrials/convicted persons by the nature of the crime and the
      length of the punishment which will take care of the severity in
      the process of consideration. In that regard, insofar as the
      undertrial/convicted persons charged under the common law,
      namely, the Indian Penal Code; they are classified into two
F     categories i.e. category-(i) as punishment below 7 years and
      category-(ii) as punishment above 7 years so that the consideration
      could be in that manner. The Committee has thought it fit to
      separately classify the undertrials/convicted persons who are
      charged under the Special Enactments irrespective of the
G     duration of imprisonment notwithstanding the fact that the
      punishment imposed could be less than 7 years. In that regard,
      what has weighed with the HPC is that such enactments provide
      for additional restrictions on grant of bail in addition to those
      under the Criminal Procedure Code. The said categorisation in
      view of this Court cannot be considered as unreasonable since at
H
NATIONAL ALLIANCE FOR PEOPLE’S MOVEMENTS & ORS.                         999
       v. THE STATE OF MAHARASHTRA & ORS.

the first instance, based on the categorisation made a                  A
consideration is required by the Court for grant of interim bail if
such undertrial/convicted person is seeking bail purely on taking
benefit of the notification issued pursuant to such decision taken
by the HPC. The exclusion made has a reasonable basis and
cannot be termed arbitrary. [Para 11][1004-F-H; 1005-A-B]
                                                                        B
       2. As already indicated the present methodology for grant
of the interim bail is with the intention to avoid overcrowding in
the unprecedented circumstance and the grant of bail in the
present circumstances is an additional benefit to such persons.
In that circumstance what has been curtailed by the HPC by
excluding certain categories is only with a view to deny the benefit    C
to certain category of jail inmates who are charged with serious
offences which has an adverse effect on the society at large though
the length of the punishment that can be imposed may be lesser.
Such of those persons charged under the special enactments or
convicted for a period, more than 7 years in any event if they are      D
not otherwise disentitled to bail in a normal circumstance could
still seek for bail in accordance with law and cannot treat the
pandemic as fortuitous circumstance to secure bail to which they
were otherwise not entitled to in law by claiming equal treatment.
All that the HPC has denied them is the benefit of seeking interim
bail only on the ground that they are entitled to be released on        E
bail in view of the Covid-19 situation and no other legal right has
been denied. Therefore, in the circumstance where the present
consideration for bail is not provided under a statute but is made
available based on the order passed by this Court and further,
when a known criteria is formulated by the HPC, which had all           F
materials before it, an interference with the same in a petition of
the present nature in any event would not have arisen and the
High Court was accordingly justified in its conclusion. [Para
12][1005-C-G]
      3. Having stated so it is necessary to indicate that the cause    G
for grievance may arise for an individual undertrial/convicted
prisoner only if such person has been discriminated as against
the prisoner in the same category for which the benefit has been
provided by the categorisation made by the HPC. That apart the
intention being to decongest the prisons, as a first step the release
                                                                        H
1000             SUPREME COURT REPORTS                            [2020] 8 S.C.R.


 A     of the prisoners based on the impugned guidelines, held to be
       unflawed would be made. If, despite the release of the undertrial/
       convicted prisoners in the categories presently made does not
       achieve the purpose and the fact that additional prisons are set
       up also does not suffice and in that context if any modification
       with regard to the categories made by HPC is necessary; certainly
 B
       it would be open for the HPC to take note of the same and apply
       their mind to modify its guidelines in that regard. [Para 14][1006-
       B-D]
             The State of West Bengal v. Anwar Ali Sarkar AIR (39)
             1952 SC 75 : [1952] SCR 284; Arun Kumar & Ors v.
 C           Union of India & Ors. (2007) 1 SCC 732 : [2006] 6
             Suppl. SCR 290; K.R. Lakshman & Ors. v. Karnataka
             Electricity Board (2001) 1 SCC 442 : [2000] 5 Suppl.
             SCR 535 – referred to.
                                Case Law Reference
 D     [1952] SCR 284                       referred to              Para 8
       [2006] 6 Suppl. SCR 290              referred to              Para 8
       [2000] 5 Suppl. SCR 535              referred to              Para 8
              CRIMINAL APPELLATE JURISDICTION: Special Leave
 E     Petition (Criminal) No. 4116 of 2020.
             From the Judgment and Order dated 05.08.2020 of the High Court
       of Judicature at Bombay in PIL-CJ-LD-VC-NO. 44 of 2020.
            SB Talekar, PB Suresh, Vipin Nair, Karthik Jayashankar, Sughosh
       Subramanium, Ms. Madhavi Ayyappan, Advs. for the appearing parties.
 F           The following Judgment of the Court was delivered:
                                     JUDGMENT
              1. The petitioners herein were before the High Court of Judicature
       at Bombay claiming to be in Public Interest (PIL-CJ-LD-VC No.44/
       2020) seeking that the decision of the High Powered Committee (‘HPC’
 G     for short) dated 25.03.2020 to the extent of Clauses (iii), (iv) and (vii) of
       paragraph 8, decisions/minutes of HPC meeting dated 11.05.2020
       excluding certain categories of offences provided in paragraph 5(i) and
       5(ii) for the purpose of grant of interim bail and corrigendum dated
       18.05.2020 of the Minutes of the Meeting of HPC dated 11.05.2020 to
 H     the extent of clarification that the class and/or category of offences
NATIONAL ALLIANCE FOR PEOPLE’S MOVEMENTS & ORS. 1001
       v. THE STATE OF MAHARASHTRA & ORS.

determined by the HPC for temporary release be not read as a direction          A
made by it for mandatory release of prisoners falling in that category or
class and a further clarification that the case of every prisoner be
considered on case to case basis for deciding the temporary release of
such prisoners. The petitioners had also sought for a direction to the
respondents to release the prisoners convicted for life imprisonment
                                                                                B
without insisting that they have been released in the past at least twice,
either on furlough or parole.
       2. The High Court on making a detailed consideration has arrived
at the conclusion that the decision of the HPC does not call for
interference except to the extent of the observations that were made in
paragraph 36 of the order. The petitioners, therefore, claiming to be           C
aggrieved are before this Court in this petition.
      3. We have heard the learned counsel for the petitioners and
perused the petition papers.
       4. Though a detailed consideration has been made by the High             D
Court whereunder separate concurring reasons are given by the learned
Judges on the Division Bench, it is necessary to notice that the present
issue has arisen only on the limited scope for grant of interim bail/parole/
furlough due to the unforeseen circumstance of the pandemic, namely,
Novel Coronavirus (Covid-19) which requires decongesting of prisons
with the intention of social distancing to be maintained so as to prevent       E
the spread of virus. It is in that circumstance, this Court while registering
a Suo Moto Writ Petition (Civil) No.1/2020 had taken note of the
pandemic and in that context also referred to the decision taken by the
Government of India to issue an advisory regarding social distancing. In
that background, having taken note that there are 1339 prisons in this          F
country and approximately 4,66,084 inmates are lodged in such prisons
had adverted to the occupancy rate which is high and, therefore,
considering the prisons to be overcrowded had issued certain directions
to ensure decongesting and maintain social distance.
       5. At the first instance this Court through the order dated              G
16.03.2020 had directed notice to be issued to all the stakeholders in this
regard so as to suggest immediate measures which should be adopted
for the medical assistance to the prisoners in all jails and the juveniles
lodged in the Remand Homes for protection of their health and welfare.
Subsequently, through the order dated 20.03.2020 this Court inter alia
issued the following directions:                                                H
1002             SUPREME COURT REPORTS                           [2020] 8 S.C.R.


 A           “We direct that each State/Union Territory shall constitute a High
             Powered Committee comprising of (i) Chairman of the State Legal
             Services Committee, (ii) the Principal Secretary (Home/Prison)
             by whatever designation is known as, (iii) Director General of
             Prison(s), to determine which class of prisoners can be released
             on parole or an interim bail for such period as may be thought
 B
             appropriate. For instance, the State/Union Territory could consider
             the release of prisoners who have been convicted or are undertrial
             for offences for which prescribed punishment is up to 7 years or
             less, with or without fine and the prisoner has been convicted for
             a lesser number of years than the maximum.
 C                  It is made clear that we leave it open for the High Powered
             Committee to determine the category of prisoners who should be
             released as aforesaid, depending upon the nature of offence, the
             number of years to which he or she has been sentenced or the
             severity of the offence with which he/she is charged with and is
 D           facing trial or any other relevant factor, which the Committee
             may consider appropriate.”
              6. Pursuant to the direction, aHigh-Powered Committee was
       constituted in respect of the prisons in the State of Maharashtra, the
       State in respect of which the present issue has arisen.The HPC having
 E     deliberated has issued the guidelines dated 25.03.2020 as formulated in
       its meeting. The Home Department, Government of Maharashtra has
       notified the same on 08.05.2020. As per the guidelines, the Committee
       has classified the inmates of the prisons, broadly into three categories,
       viz (i) undertrial prisoners/convicted persons who are facing trial or
       convicted to the maximum punishment of 7 years or less, (ii) the convicted
 F     persons whose sentence is above 7 years and (iii) the undertrial prisoners
       or convicted persons who are booked for serious economic offences/
       bank scams and offences under Special Acts such as MCOC, PMLA,
       MPID, NDPS, UAPA etc.
               7. Thus, having classified the jail inmates to different categories
 G     on such basis, considerationof the ‘nature of the offence’ and the ‘severity
       of offence’ has been indicated to be adopted as the yardstick
       whileconsidering their case for grant of interim bail in such situation.The
       petitioners while assailing the said guidelines had alleged discrimination
       in the categorisation and also unreasonableness in imposing the condition
 H     of earlier release in respect of the convicted persons for the sentence of
NATIONAL ALLIANCE FOR PEOPLE’S MOVEMENTS & ORS. 1003
       v. THE STATE OF MAHARASHTRA & ORS.

more than 7 years. It is relevant to notice that infact this Court through    A
the order dated 23.03.2020 had permitted such broad classification for
the purpose of consideration.
       8. On the contentions urged and the decisions cited before the
High Court we are of the opinion that the High Court in fact has
appropriately adverted to the same and has not committed any error in         B
arriving at its conclusion. In this regard we notice that the High Court
has aptly referred to the decision of this Court in the case of The State
of West Bengal vs. Anwar Ali Sarkar (AIR (39) 1952 SC 75), Arun
Kumar & Ors vs. Union of India & Ors. (2007) 1 SCC 732 and K.R.
Lakshman & Ors. vs. Karnataka Electricity Board (2001) 1 SCC
442 wherein the circumstances when requirement of Article 14 of the           C
Constitution is to be satisfied is considered in detail. It is articulated
therein that equality before the law or the equal protection of laws does
not mean identity or abstract symmetry of treatment and that reasonable
classification is permitted. In that background the High Court while
approving the categorisation made by HPC has gathered the intention of        D
the order dated 23.03.2020 passed by this Court in its correct perspective.
       9. While arriving at such conclusion, in addition to the reasons
assigned by the High Court we cannot also lose sight of the fact that the
entire right to claim such interim bail has arisen in the unprecedented
circumstance of the pandemic and the consideration for interim bail is        E
not in the nature of a statutory right for bail based on other legal
consideration but is more in the nature of human right to safeguard the
health. The provision for bail as otherwise provided in law in any case
would be considered by the competent courts if such right for bail is
made out before the competent court irrespective of the pandemic or
not. The present option provided is only as a solution to help decongestion   F
and to avoid the spread of virus.At the same time the benefit granted in
such circumstance cannot be to the detriment of social order by releasing
all categories of prisoners irrespective of the categorisation to be made
depending on the severity of the crime etc. The genesis for the present
claim being the order passed by this Court in a Suo MotuWrit Petition, a      G
balance was struck. As such, as noticed from the extracted portion of
the order (supra),this Court had directed the constitution of the HPC
consisting of a senior High Court Judge and highly placed officials so
that an appropriate categorisation be made in each State dependant on
the circumstance arising therein. Further, the intention of this Court was
                                                                              H
1004             SUPREME COURT REPORTS                            [2020] 8 S.C.R.


 A     not that every undertrial or convicted prisoner is to be released irrespective
       of the nature of offence or severity thereof. The consideration was for
       the purpose of decongesting the prisons so that social distancing could
       be maintained to avoid the spread of virus. In that circumstance the
       consideration would certainly be different in each State/Union Territory
       depending on the occupancy in the prison, the spread of virus, the
 B
       infrastructure available and the need,if any, to release certain number of
       prisoners so as to decongest.
             10. The above noted intention is manifest in the subsequent order
       dated 13.04.2020 passed by this Court, which reads as hereunder;
 C                   “We are informed that the State of Bihar has not found it
              appropriate to release the prisoners for complete absence of any
              patient suffering from coronavirus within the prisons and also for
              the reason that the prisons are not overcrowded. Moreover, even
              in one case the murder of a prisoner who was “accused” of
              suffering from coronavirus has been reported.
 D
                    We make it clear that we have not directed that States/
              Union Territories to compulsorily release the prisoners from their
              respective prisons. The purpose of our aforesaid order was to
              ensure the States/Union Territories to assess the situation in their
              prisons having regard to the outbreak of the present pandemic in
 E            the country and release certain prisoners and for that purpose to
              determine the category of prisoners to be released.”
              11. Therefore, the very purpose of directing each of the States/
       Union Territories to constitute a High-Powered Committee is that the
       HPC taking note of the subsisting position in such State will take a decision
 F     in the matter as the HPC will have the wherewithal to secure all details
       and take a decision. If the said aspect is kept in view, it is noticed that by
       the guideline dated 25.03.2020 the Committee in question has categorised
       the undertrials/convicted persons by the nature of the crime and the
       length of the punishment which will take care of the severity in the
 G     process of consideration. In that regard, insofar as the undertrial/convicted
       persons charged under the common law, namely, the Indian Penal Code;
       they are classified into two categories i.e. category-(i) as punishment
       below 7 years and category-(ii) as punishment above 7 years so that the
       consideration could be in that manner. The Committee has thought it fit
       to separately classify the undertrials/convicted persons who are charged
 H     under the Special Enactments irrespective of the duration of imprisonment
NATIONAL ALLIANCE FOR PEOPLE’S MOVEMENTS & ORS. 1005
       v. THE STATE OF MAHARASHTRA & ORS.

notwithstanding the fact that the punishment imposed could be less than        A
7 years. In that regard, what has weighed with the HPC is that such
enactments provide for additional restrictions on grant of bail in addition
to those under the Criminal Procedure Code. The said categorisation in
our view cannot be considered as unreasonable since at the first instance,
based on the categorisation made a consideration is required by the Court
                                                                               B
for grant of interim bail if such undertrial/convicted person is seeking
bail purely on taking benefit of the notification issued pursuant to such
decision taken by the HPC. The exclusion made has a reasonable basis
and cannot be termed arbitrary.
        12. As already indicated the present methodology for grant of the
interim bail is with the intention to avoid overcrowdingin the                 C
unprecedented circumstance and the grant of bail in the present
circumstances is an additional benefit to such persons. In that circumstance
what has been curtailed by the HPC by excluding certain categories is
only with a view to deny the benefit to certain category of jail inmates
who are charged with serious offenceswhich has an adverse effect on            D
the society at largethough the length of the punishment that can be
imposed may be lesser. Such of those persons charged under the special
enactments or convicted for a period, more than 7 years in any event if
they are not otherwise disentitled to bail in a normal circumstance could
still seek for bail in accordance with law and cannot treat the pandemic
as fortuitous circumstance to secure bail to which they were otherwise         E
not entitled to in law by claiming equal treatment. All that the HPC has
denied them is the benefit of seeking interim bail only on the ground that
they are entitled to be released on bail in view of the Covid-19 situation
and no other legal right has been denied. Therefore, in the circumstance
where the present consideration for bail is not provided under a statute       F
but is made available based on the order passed by this Court and further,
when a known criteria is formulated by the HPC, which had all materials
before it, an interference with the same in a petition of the present nature
in any event would not have arisen and the High Court was accordingly
justified in its conclusion.
                                                                               G
       13. That apart, keeping in perspective the object with which the
interim bail was ordered to be considered for the purpose of avoiding
overcrowding, the High Court has taken note of the factual position that
as on 24.07.2020, as per details furnished, 10338 prisoners were released
on interim bail/parole and presently 26,279 prisoners are in prison. Since
it was contended on behalf of the petitioners that the official capacity is    H
1006                SUPREME COURT REPORTS                        [2020] 8 S.C.R.


 A     only 23,217, the State Government had indicated that temporary prisons
       have been set up in 36 locations and about 2597 prisoners are occupying
       the same as of now and more will be shifted to avoid overcrowding in
       the existing prisons, which indicates that appropriate steps are being
       taken to achieve the object.
 B            14. Having stated so it is necessary to indicate that the cause for
       grievance may arise for an individual undertrial/convicted prisoner only
       if such person has been discriminated as against the prisoner in the same
       category for which the benefit has been provided by the categorisation
       made by the HPC. That apart the intention being to decongest the prisons,
       as a first step the release of the prisoners based on the impugned
 C     guidelines, held to be unflawed would be made. If, despite the release of
       the undertrial/convicted prisoners in the categories presently made does
       not achieve the purposeand the fact that additional prisons are set up
       also does not suffice and in that context if any modification with regard
       to the categories made by HPC is necessary; certainly it would be open
 D     for the HPC to take note of the same and apply their mind to modify its
       guidelines in that regard.
              15. Therefore, it would still be open for the petitioners to obtain
       necessary statistics and if any modification of the guidelines is necessary
       in future,they will be at liberty to submit an appropriate representation to
       the HPC which would in that circumstance look into the same and arrive
 E     at a conclusion at its discretion depending on the need or otherwise to
       modify its guidelines. In that view, we are of the opinion that when such
       factual consideration to achieve the object alone is necessary and the
       HPC is constituted for the very purpose, interference in a judicial
       proceeding of the present nature to alter the criteria would not arise
 F     unless it is shown to be so arbitrary that no reasonable person can accept.
       But in circumstances where there is any individuous discrimination
       amongst the prisoners in same category and similarly placed, it would be
       open for the competent Court to examine the same to that limited extent
       when grievance is raised by the person who is denied the benefit if he/
       she is entitled to such benefit.
 G
              16. With the afore-stated observations, the above petition stands
       dismissed. No order as to costs. Pending application, if any, stands
       disposed of.

       Ankit Gyan                                                 Petition dismissed.
 H