Holding

The State's executive policy for remission is valid, but it operates prospectively and does not apply to convicts sentenced before its promulgation, so the High Court's declaration of unconstitutionality is set aside.

Summary

The respondents, life convicts sentenced in 1988 for murder, challenged a 2002 executive policy of the State of Haryana that set new criteria for premature release of life prisoners based on the nature and number of murders. The Punjab Prison Rules and Section 433A of the CrPC required a minimum of 14 years’ imprisonment before any remission. The High Court held the policy unconstitutional as arbitrary discrimination among life convicts. The Supreme Court examined whether the State could issue general instructions for remission, whether such classification violated Article 14, and whether the policy could be applied retrospectively. It held that the State may validly classify prisoners for remission, that the 2002 policy is prospective and therefore does not apply to convicts sentenced before its issuance, and that the High Court’s declaration of unconstitutionality was erroneous. Consequently, the appeals were dismissed.

Issues considered

The constitutionality of the State of Haryana's 2002 executive policy on premature release of life convicts.
Whether the policy violates Article 14 of the Constitution by arbitrary classification.
Whether the policy can be applied retrospectively to convicts sentenced before its issuance.
Whether convicts have a legal right to be considered for remission under Articles 20 and 21.
Whether executive instructions can override statutory provisions such as the Punjab Prison Rules and Section 433A of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 432, s. 433, s. 433A
Indian Penal Code, 1860s. 54, s. 55
Prisons Act, 1894s. 59(5)
State Reorganisation Act

Subjects

remissionlife imprisonmentclassificationArticle 14Section 433Aexecutive instructionprospective applicationprison rulesconstitutional law

Judgment

-{

·f
A STATEOFHARYANA
v.
MAHENDER SINGH AND ORS.

NOVEMBER2, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.] t
-\

Sentence/Sentencing-Remission ofsentence-State classifYing
category of life convicts for pre-mature release by executive
c instruction-Life convicts, convicted prior to the date ofinstruction,
challenging the classification-High Court holding the classification
as uncot:zstitutional-On appeal, held: No convict has fundamental
right of remission-Valid classification by general instruction is
permissible-However, the classification will have prospective
D operation and would not apply to the convicts in question-The
-4
instructions being advisory in nature, would not have force of a l
statute-Code ofCriminal Procedure; 1973-s. 433A-Punjab Prison
Rules-Rules 2, 20 and 21-Constitution ofIndia, 1950-Articles 14,
20and 21.
E
The State of Haryana by an executive order, in the year 2002
laid down criteria for pre-mature release oflife convicts. The same
was challenged in Writ Petition by the respondents, who were
convicts sentenced to life imprisonment in 1988. They, at the time
of their conviction, were covered by instructions issued by the State
F
ofHaryana in the year 1984 amending Punjab Prison Rules. High _J..
Court allowed the Writ Petition declaring the criteria laid down to
be unconstitutional on the premise that no discrimination could be
made inter-se amongst the life convicts and thus the purported
classification was arbitrary and discriminatory. Hence the present
G appeals.

Dismissing the appeals, the Court '';r-

HELD: 1. It is true that no convict has a fundamental right of

H 932
STATE v. MAHENDER SINGH 933

remission or shortening of sentences. It is also true that the State A
in exercise ofits executive power of remission must consider each
individual case keeping in view the relevant factors. The power of
the State to issue general instructions, so that no discrimination is
made, is also permissible in law. A classification validly made would
not offend Article 14 of the Constitution oflndia. , B
1t [Paras 25 and 36) [944-H; 945-A; 950-E) 1

2.1. However, the new policy decision adopted by the State of
Haryana will have a prospective operation. At the point of time when,
the respondents were convicted, viz., in the year 1988, for, C
consideration of their cases for remission, the conditions which were
required to be fulfilled, were that they should have undergone at'
least.8 Yz years of the substantive or actual sentence and they should'
have also undergone 14 years of sentence including the period of
remission earned. Indisputably, however, the same was subject to
Section 433A Cr.P.C. [Paras 26 and 27] [945-A-C) D
Maru Ram v. Union of India and Ors., [1981) 1 SCC 107,
followed.
State of Punjab and Ors. v. Joginder Singh and Ors., [1990) 2
SCC 661, relied on. E

Mohd A1unnav. UnionoflndiaandOrs., [2005) 7SCC 417 and
Epuru Sudhakar and Anr. v. Govt. ofA.P. and Ors., [2006] 8 SCC 161,
distinguished

Sadhu Singh and Ors. v. State ofPunjab, [1984) 2 SCC 310; State .F
ofHaryana and Anr. v. Ram Diya, [1990) 2 SCC 701 and Rajender
and Ors. v. State ofHaryana, [1995) 5 SCC 187, referred to.
2.2. Whenever a policy decision is made, persons must be
treated equally in terms thereof. A' fortiori the policy decision G
applicable in such cases would be which was prevailing at the time
. -'. of his conviction. [Para 33) [948-H]

Commissioner ofMunicipal Corporation, Shim/av. Prem Lata
Sood and Ors., (2007) 7 SCALE 737, referred to.
H

\
934 SUPREME COURT REPORTS [2007] 11 S.C.R.

A 2.3. A right to be considered for remission, keeping in view the
constitutional safeguards of a convict under Articles 20 and 21 of
the Constitution oflndia, 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. Although no convict can be said to have any
B constitutional right for obtaining remission in his sentence, he in view
of_t~e policy decision itself must be held to have a right to be t
consider:ed therefor. Whether by reason of a statutory rule or
otherwise if a policy decision has been laid down, the persons who
come within the purview thereof are entitled to be treated
c equally. (Para 32] (948-D-E]
State ofMysore andAnr. v. H Srinivasmurthy, (1976] 1SC<;:817,
referred to.
2.4. Any guidelines which do not have any statutory flavour are
D merely advisory in nature. They cannot have the force of a statute.
They are subservient to the legislative act and the statutory rules.
If the Punjab Rules are applicable in the State ofHaryana in view
of the State Reorganization Act, no executive instruction would
· prevail over the Statutory Rules. The Rules have defined 'convicts'
E in terms whereof a 'life convict' was entitled to have his case
considered within the parameters laid down therein, the same
cannot be taken away by_ reason of an executive instruction by
redefining the term 'life convict'. It is one thing to say that the 'life
convict' has no right to obtain remission but it is another thing to
F say that they do not have any right to be considered at all. Right to
be considered emanates from the State's own executive instructions
as also the Statutory Rules. [Paras 32 and 34) (948-F-G; 949-B-C]
Maharao Sahib Shri Bhim Sinhji v. Union of India and Ors.,
[1981] 1SCC166; JR. Raghupathy and Ors. v. State ofA.P and Ors., .
G [1988] 4 SCC 364 and Narendra Kumar Maheshwariv. Union ofIndia,
(1990] Supp SCC 440, referred to.
' . '>---
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
30of2005.
H

.1
}-
STATEv. MAHENDERSINGH[SINHA,J.] 935
r
From the Judgment and final Order dated 24.7.2003 of the High A
Court of Punjab and Haryana at Chandigarh in Criminal Misc. No. 30109-
M of2002.
WITH
Crl. A. No. 31 of 2005. B
iI
P.N. Misra, Vijay Hansaria and B. Malik, Rajeev Gaur 'Naseem',
Rajesh Ranjan, T.V. George, Dr. Rajeev B. Masodkar, Sneha Kalita, Anil
K. Jha, Naveen Kumar Singh, Bharat Singh and S. Janani for the
appearing parties.
c
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. A circular letter issued by the State of Haryana
laying down criteria for pre-mature release of the prisoners has been
declared to be unconstitutional by a Division Bench of the Punjab and
D
Haryana High Court by reason of the impugned judgment.
~
2. Respondents herein are life convicts: They were chargesheeted
for commission of an offence of murder of Ran Singh, Rattan Singh and
Satbir Singh. They have been found guilty thereof by a judgment of
conviction and sentence dated 25.01.1988. Indisputably, their appeals E
before the High Court as also this Court [since reported in [1995] 5 SCC
187] had been dismissed.
3. The State of Punjab in exercise of its power conferred upon it
under the Prisons Act, 1894 made rules. They have statutory force. Sub-
rules (a)~ (b), (c), (d) and (f) of Rule 2 read as under: F

"(a) "prisoner" includes a person committed to prison in default
of furnishing security to keep the peace or be of good behaviour;
(b) "class I prisoner" means a thug, a robber by administration of
poisonous drugs or a professional, hereditary or specially dangerous G
--< .
\
criminal convicted of heinous organized crime, such as dacoity;
(c) "class 2 prisoner" means a dacoit or other person convicted
of heinous organized crime, not being a professional, hereditary,
or specially dangerous criminal; H
1
936 SUPREME COURT REPORTS [2007] 11 S.C.R.
'""+
l

A (d) "class 3 prisoner" means a prisoner other than a class 1 or
class 2 prisoner;
(f) "life convict" means
(i) a class 1 or class 2 prisoner whose sentence amounts to twenty-
B five years' imprisonment, or
(ii) a class 3 prisoner whose sentence amounts to twenty years' t ' ~·
r

imprisonment''
4. Rules 20 and 21 of the said Rules read thus:
c
"20. When a life-convict being a class 1 prisoner has earned such
remission as entitles him to release, the Superintendent shall report
accordingly to the Local Government with a view to the passing
of orders under section 401 of the Code of Criminal Procedure,
D 1898.
-"" I
21. Save as provided by rule 20, when a prisoner has earped such ; l.
t-
remission as entitles him to release, the Superintendent shall release
him."

E 5. It, however, appears that on 12.07.1910, a note was appended
to the existing Rules 20 and 21 which is in the following terms:
"The intention of these rules is (a) that the cases of class I life-
convicts, or class II or class III life-convict who have more than
one sentence for offences committed either before their admission
F to Jail or while in jail; and of any other life-convicts in whose cases
)_
the local Government may have deemed it desirable, should be
submitted for the special orders of the local Government as to
whether release should be granted, and if so, on what conditions
(such conditions must, it should be noted, be prescribed by order
G under section 401, Code of Criminal Procedure), and (b) that all
other convicts should, on the expiry of their sentences, less the
. 'r-
periods of remission earned, be released unconditionally without
any special orders from the Local Government."
The Punjab Rules were amended on 9.03 .1962, in terms whereof,
H
STATEv. MAHENDERSINGH[SINHA,J.] 937

'life convict' has been defined to mean 'prisoner whose sentence amounts A
to 20 years imprisonment'.
6. Indisputably, the State of Punjab had been issuing instructions in
relation to pre-mature release of the convicts from time to time. In the
year 1988, when the respondents were convicted, the Rules which were B

i applicable were of27.02. l 984; relevant portion whereof is as under:
"The Haryana Government. vide letter No. 7483/2JJ/77130099
dated 28.11.1987 had directed that cases of life convicts of the
following two categories be put up to the State Level Committee
for review of their premature release and final decision of the State c
Government thereon. The categories are:
1. Adult male life convicts After completion of 8-112 years of
substantive sentence and 14 years
sentence including remission.
D
2. Female and Juvenile life After completion of 6 years of
convicts who were below substantive sentence and 10 years
20 years of age at the time sentence including remission."
of commission of offence.
E
7. On or about 28.09.1988, the said instructions were amended in
the following terms:
"(a). Convicts whose death Their cases will be reviewed after
sentence has been completion of 14 years actual
commuted to life sentence including undertrial/ F
imprisonment by the detention period. In case of very
President oflndia or by the good conduct in jail for 12 years,
Governor of Haryana on their cases will be considered after
acceptance of mercy 12 years of actual imprisonment
petition. including undertrial/ detention G
--{. period.
I

(b) Juvenile life convicts below Their cases may be considered
the age of 18 years at the after 6 years actual sentence
time of commission of including undertrial/ detention H
-{
938 SUPREME COURT REPORTS [2007] 11 S.C.R.

A offence and female life period, provided the total of
convicts. period of such detention including
remissions is not less than 10
years.
B (c) Adult life convicts (above Their cases may be considered
18 years) not convicted for after completion of 8Yl years of
heinous crimes as defined in substantive detention including
(d) below. undertrial/ detention period,
provided that the total period of
such detention including remissions
c is not less than 14 years.
(d) Adult life convicts involved After undergoing 14 years actual
in heinous crimes such as detention including undertrial/
dowry deaths, bride burning, detention period.
D husband killing and cases
disclosing great depravity of
character and greed and
those involving extreme
brutality, murder with rape,
E murder while undergoing life
sentence, organized and
professional crimes of
heinous nature like dacoity
with murder and life
F convicts, who are
dangerous and hardened
criminals as evidenced for
example from cumulative
sentences, persistent bad
G conduct in the prison and
those who could not for
some definite reasons be
prematurely released
without danger to public
safety.
H
STATEv. MAHENDERSINGH[SINHA,J.] 939

(e) Persons sentenced to life These prisoners may be A
imprisonment inclusive of considered for release irrespective
those convicted of crimes of the detention undergone on
under ( d) above and in report of Medical Board
whose cases death designated by the Government.
sentence has been Medical re-examination of the B
i commuted to
imprisonment but who are
life convict should be done 3 months
after such release for the
suffering from terminal confirmation of the disease.
illness like cancer or Conditions of release should
tuberculosis likely to result contain the provision regarding C
in death in the near future. medical re-examination and re-
admission to the prison if patient is
not found to be suffering from such
a disease or is on the road to
re~overy." D

8. From the 1984 and 1988 instructions, it would appear that there
did not exist any category of a life convict involved in a heinous crime
apart from the ones stated therein.
Yet again on 19.11.1991, the policy was modified to the following E
effect:
"2(b) Adult life convicts who Their cases may be considered
have been imprisoned for after completion of I 0 years of
life but whose cases are not actual sentence including their F
covered under (a) above trial period, provided that the
and who have committed total period of such sentence
crime which are not including remission is not less
considered heinous as than 14 years.
mentioned in clause (a) G
above.
--1.
\
*** *** ***
5. Such cases will he put to the Governor through the Minister for
Jails and the Chief Minister, with full background of the prisoner and H
'.
940 SUPREME COURT REPORTS [2007] 11 S.C.R.

A recommendations of the State Level Committee, alongwith the copy of
judgment etc. for orders under Article 161 of the Constitution oflndia."
9. Similar provisions were again made by reason of a policy
statement made on 4.02.1993.
B 10. Concededly, the Government of India, Ministry of Home issued
instructions for revising the rules made under Section 59(5) of the Prisons
Act, 1894 wherein the following recommen~ations were made:
"I ......."Transportation for life'' or "Imprisonment for life" should
be taken to mean imprisonment for 20 years in practice. However,
c in treating "transportation or imprisonment for life" as a term of
20 years' imprisonment, necessary distinction between different
classes of prisoners can be adequately allowed for, when reckoning
remissions before release of prisoners".

D *** *** ***
--4_
3. In view of the decision referred to in para 1 above, according f•
to which the period of 25 years' imprisonment in case of class I
and II prisoners, has been reduced to 20 years. The Government
oflndia consider that it would be desirable to amend the relevant
E Remission Rules also for the purpose. As, however, those powers
are vested in the State Government under section 59(5) of the
Prisons Act, 1894, I am to suggest that the State Government may
consider taking necessary steps to amend the relevant provisions
of the Remission Rules at an early date This Ministry may be
F informed of the action taken in the matter."
~
11. Paragraphs 516-B and 635 of the Punjab Jail Manual read as
under:
"516-B. (a) With the exception offemales and of males who were
G under 20 years of age at the time of commission of offence, the
cases of every convicted prisoner sentenced to :
. ;r- .
(i) Imprisonment for life,
(ii) Imprisonment/s for life and tennis of imprisonment,
H
7
STATEv. MAHENDERSINGH[SINHA,J.] 941
-r--
(iii) Cumulative periods of rigorous imprisonment aggregating to A
more than 14 years,
(iv) A single sentence of more than 20 years:
(a) who has undergone a period of detention in jail amounting
together with remission earned to 14 years, shall be submitted B
i through the Inspector-General of Prisons, Punjab for the orders
of the State Government,
(b) the case of a female prisoner and of a male prisoner under 20
years of age at the time of commission of offence , who is c
undergoing-.
(i) Imprisonment/s for life,
(ii) Imprisonment/s for life and a terrn/s of imprisonment,

~- (iii) Cumulative periods of rigorous imprisonment aggregating to D
~' more than 10 years or,
(iv) A single sentence of more than 20 years shall be submitted
through the Inspector-General of Prisons, Punjab, for the orders
of the State Government when the prisoner has undergone a period E
of detention in jail amounting together with remission earned to 10
years,
(v) Notwithstanding anything contained above, a Superintendent,
Jail may, in his discretion, refer at any time, for the orders of the
State Government through the Inspector-General of Prisons, F
Punjab, the case of any prisoner sentenced to imprisonment for
life whose sentence might in the Superintendent's opinion be
suitably commuted into a term of imprisonment.
635. Scale of award ofremission-Ordinary remission shall be
G
awarded on the folloWing scale-
--1"
(a) two days per month for thoroughly good conduct and
scrupulous attention to all prison regulations.
(b) two days per month for industry and the due performance of
H
~
942 SUPREME COURT REPORTS [2007] 11 S.C.R.

-r
A the daily task imposed.
..,,_
'
12. Paragraph 647 is inpari materia with Rule 20 of the Statutory
Rules.
13. The State of Haryana, however, formulated a policy in regard
B to pre-mature release of life convicts in terms whereof the cases for
remission were required to be considered after completion of 10 years
of actual imprisonment and 14 years including remission. The said policy,
however, was reformulated on or about 12.04.2002; the relevant portion
whereof is as under:
c "Convicts whose death sentence Their cases may be considered after
has been commuted to life completion of 20 years of actual
imprisonment and convicts who sentence and 25 years total
have been imprisonment for life sentence with remissions.
having committed a heinous crime
n· such as:-
-4,
(i) Murder after rape repeated {·

chained rape/ unnatural offences.
(ii) Murder with intention for the
ransom.
E
(iii) Murder of more than two
persons.
(iv) Persons convicted for second
time for murder.
F (v) Sedition with murder.
._::z
(a) Convicts who have been Their cases may be considered after
imprisoned .for life having completion of 14 years of actual
committed a heinous crime such sentence including their trial period,
as: provided that the total period of
G
(i) Murder with wrongful such sentence including remissions
confinement for extortion/ is not less than 20 years."· r.
robbery.
(ii) Murder while undergoing life
H sentence
STATEv. MAHENDERSINGH[SINHA,J.] 943

(iii) Murder with dacoity A
(iv) Murder with offence under
TADA Act, 1987
(v) Murder with untouchability
(offences) Act, 195 5
B
i (vi) Murder in connection with
dowry.
(vii) Murder of a child under the
age 14 years.
14. The writ petition preferred by the respondents questioning the c
constitutionality of the said policy decision has been allowed by the High
Court on the premise that no discrimination could be made inter se amongst
the life convicts; all of them being similarly situated and, thus, the purported
classification on the ground of number of murders was arbitrary and
discriminatory. D
15. The State ofHaryana is, thus, before us.
16. Mr. P.N. Misra, learned senior counsel appearing on behalf of
the appellant, submitted that the State having an unfettered right to
formulate a policy decision in regard to remission of sentence, the High E
Court committed a manifest error in arriving at the aforementioned
conclusion; particularly, having regard to the provisions contained in
Sections 54 and 55 of the Indian Penal Code and Section 433A of the
Code of Criminal Procedure, 1973.
17. The learned counsel would contend that the executive F
,C government ofthe State in exercise of its constitutional power under Article
161 of the Constitution of India can formulate such a policy decision and
the same has been approved by this Court and in that view of the matter
it can also reformulate the policy from time to time.
18. Article 14, learned counsel would contend, does not forbid G
reasonable classification. Such a policy decision having been formulated
......; . for the benefit of the convicts themselves, as in terms of Section 433A of
the Code of Criminal Procedure, a convict does not have any constitutional
or statutory right of remission of sentence, cannot be held to be
unconstitutional.
H
I

4
944 SUPREME COURT REPORTS (2007] 11 S.C.R.

A 19. Mr. Vijay Hansaria, learned senior counsel appearing on behalf
of the respondents, on the other hand, would submit that the right to be
considered for obtaining remission itself is a fundamental right. According
to the.learned counsel, the said policy decision, if taken into consideration
in the backdrop of the criminal case in which the respondents had been
B convicted, would lead to an inference of hardship inasmuch as although
they have been found to be guilty for murder of more than one person, )-·
the same arose out of a land dispute, and although not accepted by the ~
Trial Court, a plea of self-defence was also raised.
20. Mr. B. Malik, learned senior counsel appearing on behalf of some
C of the respondents, supplemented the submissions of Mr. Hansaria stating
that no policy decision could be formulated in derogation of the Statutory
Rules and in any event, the said policy decision would have prospective
operation and, thus, would not apply in the fact of this case, as the
respondents have been convicted in the year 1988.
D 21. The State indisputably is entitled to take a prison policy as contra-
distinguished from a sentencing policy. The Prisons Act, 1894 was enacted I·
to amend the law relating to Prisons. Sub-section (5) of Section 59 thereof
empowers the State Government to make rules for the award of marks
and shortening of sentences. The State of Punjab, pursuant to the said
E power, framed rules.
22. The Rules put the convicts into three categories. It also defines
the term 'life convicts'. Whereas a classification had been made from
amongst the convicts' having regard to the gravity of the offences
committed by them, indisputably no classification has been made on the
F basis of the number of deaths which might have taken place at the hands
of the persons. The State apart from making the Statutory Rules, as
noticed hereinbefore, had been issuing executive instructions.
23. Section 432 of the Code of Criminal Procedure provides for
power to suspend or remit sentences. Section 433 provides for power
G to commute sentence. Section 433A, which was inserted in the Code of
Criminal Procedure by Act No. 45 of 1978 and which came into force
with effect from 18.12.1978, provides that 'notwithstanding anything · >-
contained in Section 432, no convict shall be released from prison unless
he has served at least 14 years of imprisonment where a sentence of
imprisonment for life has been imposed'.
H
t--
---i STATE v. MAHENDERSINGH [SINHA,J.] 945
~

24. We may also notice Sections 54 and 55 of the Indian Penal Code A,
which read as under:
"54 - Commutation of sentence of death : In every case in which
sentence of death shall have been passed, the appropriate
Government may, without the consent of the offender, commute
the punishment for any other punishment provided by this Code. B
·j 55 - Commutation of sentence of imprisonment for life : In every
case in which sentence of imprisonment for life shall have been
passed, the appropriate Government may, without the consent of
the offender, commute the punishment for imprisonment of either
description for a term not exceeding fourteen years." c
25. It is true that no convict has a fundamental right of remission or
shortening of sentences. It is also true that the State in exercise of its
executive power of remission must consider each individual case keeping
in view the relevant factors. The power of the State to issue general
.__
instructions, so that no discrimination is made, is also permissible in law. D'
~-
26. The question, however, which would inter alia arise for
consideration is as to whether new policy decision adopted by the State
of Haryana will have a prospective operation.
27. At the point of time when the respondents were convicted, viz.,
in the year 1988, for consideration of their cases for remission, the E
following conditions were required to be fulfilled:
(i) They should have undergone at least 8112 years of the
substantive or actual sentence
(ii) They should have also undergone 14 years of sentence F
including the period of remission earned.
Indisputably, however, the same was subject to Section 433A of
the Code of Criminal Procedure.
28. Validity or otherwise of Section 433A of the Code of Criminal
G,
4 Procedure came up for consideration before a Constitution Bench of this
~-
Court in Maru Ram V. Union of India and Ors., [1981] 1 sec 107
wherein this Court inter alia held:
"54. The major submissions which deserve high consideration may
now be taken up. They are three and important in their outcome
H
)
-~
..
946 SUPREME COURT REPORTS [2007] 11 S.C.R.
,__. > t

A in the prisoners' freedom from behind bars. The first turns on the
"prospectivity" (loosely so called) or otherwise of Section
433-A. We have already held that Article 20(1) is not violated but
the present point is whether, on a correct construction, those who
have been convicted prior to the coming into force of Section 433-
B A are bound by the mandatory limit. If such convicts are out of its
coils their cases must be considered under the remission schemes
and "short-sentencing" laws. The second plea, revolves round
"pardon jurisprudence", if we may coarsely call it that way,
enshrined impregnably in Articles 72 and 161 and the effect of
Section 433-A thereon. The power to remit is a constitutional
c power and any legislation must fail which seeks to curtail its scope
and emasculate its mechanics. Thirdly, the exercise of this plenary
power cannot be left to the fancy, frolic or frown of Government,
State or Central, but must embrace reason, relevance and
reformation, as all public power in a republic must. On this basis,
D we will have to scrutinise and screen the survival value of the
various remission schemes and short-sentencing projects, not to ~
(' .
test their supremacy over Section 433-A, but to train the wide and
beneficent power to remit life sentences without the hardship of
fourteen fettered years."
E 29. In regard to the first point, it was held that a person convicted
before coming into force of Section 433A of the Cod~ of Criminal
Procedure goes out of the pale thereof and will enjoy the benefits as had
accrued to him.
In regard to the second point, it was held that Articles 72 and 161
F of the Constitution oflndia must yield to Section 433A of the Code of
.:),
Criminal Procedure.
The Constitution Bench was of the opinion that remission schemes
offer healthy motivation for better behaviour, inner improvement and
development of social fibre. It was observed that remission and short
G
sentencing scheme provides for good guidelines for exercise of pardon t-
power, a jurisdiction meant to be used as often and as systematically as . r- )L_

possible and not to be abused, much as the temptation so to do may press
upon the men of power.
It was also opined:
H
...(
~
STATEv. MAHENDERSINGH[SINHA,J.] 947
._
"(10) Although the remission rules or short-sentencing provisions A
proprio vigore may not apply as against Section 433-A, they will
override Section 433-A if the Government, Central or State, guides
itself by the selfsame rules or schemes in the exercise of its
constitutional power. We regard it as fair that until fresh rules are
made in keeping with experience gathered, current social conditions B
and accepted penological thinking a desirable step, in our view the
i'
I present remission and release schemes may usefully be talcen as
guidelines under Articles 72/161 and orders for release passed.
We cannot fault the Government, if in some intractably savage
delinquents, Section 433-A is itself treated as a guideline for
exercise of Articles 72/161. These observations of ours are c
recommendatory to avoid a hiatus, but it is for Government, Central
or State, to decide whether and why the current Remission Rules
should not survive until replaced by a more wholesome scheme."
30. However, in Sadhu Singh and Ors. v. State ofPunjab, [1984]
..
~\
2 SCC 310, although this Court noticed the aforementioned binding D
precedent in Maru Ram (supra) wiJiout dwelling upon the question in
depth, while interpreting the provisions of paragraph 516-B of the Jail
Manual, opined that the same does not have the force of a statutory rule
and, thus, it would be open to the State Government to alter or amend
or even withdraw such executive instruction stating: E
"6...... .In other words any existing executive instructions could be
substituted by issuing fresh executive instructions for pr~ssing,the
cases of lifers for premature release but once issued these must
be uniformly and invariably applied to all cases oflifers so as to
avoid the charge of discrimination under Article 14." F
>-· The contention that those convicts who had been sentenced to death
but whose sentence on mercy petitions has been commuted to life
~ imprisonment will be governed by the 1976 instructions was negatived.
This Court, however, upheld the right of two convicts whose cases
G
c
,~·
were entitled to be considered for pre-mature release immediately in view
of 1976 instructions. Unfortunately, the attention of this court was nqt
drawn to the relevant paragraphs of the decision in Maru Ram (supra).
31. We may notice that the question has been considered by thi~
Court in State ofPunjab and Ors. v. Joginder Singh and Ors., [(1990) H
948 SUPREME COURT REPORTS [2007] 11 S.C.R.

A 2 SCC 661] wherein it was held:
"9 .... Even in such cases Section 433-A of the Code or the
executive instruction of 1976 does not insist that the convict pass
the remainder of his life in prison but merely insists that he shall
have served time for at least 14 years. In the case of other 'lifers'
B the insistence under the 1971 amendment is that he should have a
period of at least 8 112 years of incarceration before release. The
1976 amendment was possibly introduced to make the remission
scheme consistent with Section 433-A of the Code. Since Section
433-A is prospective, ·so also would be the I 97 I and I 976
c amendments.
*** *** ***
11. We, therefore, find it difficult to uphold the view taken by the
High Court in this behalf. We may make it clear that paragraph
516-B insofar as it stands amended or modified by the 1971 and
D 1976 executive orders is prospective in character"
[Emphasis supplied]
[See also State ofHaryana and Anr. v. Ram Diya, [1990] 2 SCC
701 and Rajender and Ors. v. State of Haryana, [1995] 5 SCC 187].
E 32. A right to be considered for remission, keeping in view the
constitutional safeguards of a convict under Articles 20 and 21 of the
Constitution oflndia, 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. Although no convict can be said to have any constitutional
F right for obtaining remission in his sentence, he in view of the policy
decision itself must be held to have a right to be considered therefor.
Whether by reason of a statutory rule or otherwise if a policy decision
has been laid down, the persons who come within the purview thereof •
~
~-

are entitled to be treated equally. [State of Mysore and Anr. v. H
G Srinivasmurthy, [1976] 1 SCC 817]
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. [See Maharao Sahib Shri Bhim Singhji v. Union of India and
H Ors., [1981] 1 SCC 166, JR. Raghupathy and Ors. v. State of A.P.
(

j
STATEv. MAHENDERSINGH [SINHA,J.] 94~

. ~·

and Ors., [1988] 4 sec 364 and Narendra Kumar Maheshwari V. A
-{ Union of India, [1990] (Supp) SCC 440]
33. Whenever, thus, a policy decision is made, persons must be
treated equally in terms thereof A' fortiori the policy decision applicable.
in such cases would be which was prevailing at the time of his conviction. ,
[See Commissioner of Municipal Corporation, Shim/a v. Prem Lata . B
1 Sood and Ors., (2007) 7 SCALE 737]
34. Furthermore, if the Punjab Rules are applicable in the State of
I-iaryana in view ofthe State Re.organisation Act, no executive instruction ,
would prevail over the Statutory Rules. The Rules having defined 'convicts'
in terms whereof a 'life convict' was entitled to have his case considered c
within the parameters laid down therein, the same cannot be taken away
by reason of an executive instruction by redefining the term 'life convict'.
It is one thing to say that the 'life convict' has no right to obtain remission
but it is another thing to say that they do not have any right to be
~
considered at all. Right to be considered emanates from the State's own D
~
_, exeeutive instructions as also the Statutory Rules.
Strong reliance, however, has been placed by Mr. Misra on Mohd
Munna v. Union ofIndia and Ors., [2005] 7 SCC 417. In that case, a
writ petition was filed under Article 32 of the Constitution oflndia by the
appellant therein stating that as he had undergone 21 years of imprisonment E
he should be set at liberty forthwith having regard to the provisions of
Clause 751(c) of the West Bengal Jail Code and Section 6 of the West
Bengal Correctional Services Act, 1992. Claim for damages was also
advanced. It was in that factual backdrop, this Court held:
"14. The Prisons Rules are made under the Prisons Act and the F
>- Prisons Act by itself does not confer any authority or power to
commute or remit sentence. It only provides for the regulation of
the prisons and for the terms of the prisoners confined therein.
Therefore, the West Bengal Correctional Services Act or the West
Bengal Jail Code do not confer any special right on the petitioner
herein." G
- --"'( .
In the said decision, unfortunately, againMaru Ram (supra) was not
considered. In any event, the respondents had inter alia prayed for
payment of dan1ages.
35. Reliance was also placed by Mr. Misra on Epuru Sudhakar H
950 SUPREME COURT REPORTS [2007] 11 S.C.R.
·-1_·
A and Anr. v. Govt. of A.P. and Ors., [2006] 8 SCC 161. Therein, a
'
Division Bench opined:
"65. Exercise of executive clemency is a matter of discretion and
yet subject to certain standards. It is not a matter of privilege. It is
a matter of performance of official duty. It is vested in the President
B or the Governor, as the case may be, not for the benefit of the
convict only, but for the welfare of the people who may insist on
the performance of the duty. This discretion, therefore, has to be
(
exercised on public considerations alone. The President and the
Governor are the sole judges of the sufficiency of facts and of the
c appropriateness of granting the pardons and reprieves. However,
this power is an enumerated power in the Constitution and its
limitations, ifany, must be found in the Constitution itself. Therefore,
the principle of exdusive cognizance would not apply when and if
the decision impugned is in derogation of a constitutional provision
This is the basic working test to be applied while granting pardons, · ~
D reprieves, remissions and commutations." t
~
1~
Then:: may not be any dispute with regard to the said proposition of
law. But herein we are concerned with the right of the respondents to be \
considered for remission and not what should be the criteria when the
matter is taken up for grant thereof.
E
36. We are, therefore, of the opinion that the High Court might not
be correct in holding that the State has no power to make any classification
at all. A classification validly made would not offend Article 14 of the
Constitution of India. We, thus, although do not agree with all the
reasonings of the High Court, sustain the judgment for the reasons stated
F
hereinbefore. -(
It appears that during pendency of the Special Leave, Respondent
Nos. 6 and 11 have already been directed to be r~leased. No order,
therefor, is required to be passed in their case. So far as the cases of
other respondents are concerned, the same may be considered by the
G
appropriate authority in the light of the observations made hereinabove.
37. The appeals are dismissed with the aforementioned observations. ·j--
In view ofthe :findings aforementioned, it is not necessary to pass any order
in the contempt matter. The contempt application is dismissed. No costs.
H K.K.T. Appeals dismissed.