Rashidul Jafar @ Chota v. State of Uttar Pradesh & Anr
DR DHANANJAYA Y CHANDRACHUD, J.
1. In this batch of cases which emanates from Uttar Pra desh,
five hundred and twelve convicts who are undergoing a sentence of
imprisonment for life seek premature release.
2. On 1 August 2018, the Government of Uttar Pradesh issued a
policy governing premature release of convicts with the approval of the
Governor under Article 161 of the Constitution. The policy is described
RASHIDUL JAFAR @ CHOTA v. STATE OF UTTAR PRADESH
& ANR.
as a “Standing Policy regarding premature release of prisoners sentenced
to life imprisonment on the occasion of every Repub lic Day
(26th January)”. The policy sets out categories of convicts entit led to
premature release. Among those categories is para 2(b). The translation
provided by the Additional Advocate General is extracted below:
“2(b). All male convicted prisoners sentenced to imprisonment for
life whose crime is not covered by any of the sub-rule under
prohibited category defined in para-3 below and who have
undergone, including undertrial custody, sentence of 16 years
without remission and 20 years with remission.”
3. ‘Prohibited categories’ are spelt out in para 3 of the policy.
Clause (vi) of the prohibited categories is set out below:
“(vi) All such convicted prisoners sentenced to imprisonment for
life who have been convicted for the crimes related to
incidents of massacre (three or more than three murders).”
4. Para 4 of the policy provided as follows:
“4. All Senior Superintendent/Superintendent/ Superintendent
In charge shall examine the eligibility of all such convicted
prisoners sentenced to imprisonment for life detained in jails
in terms of the prescribed policy/directions contained in the
aforesaid paras and shall make available in the prescribed
proforma enclosed herewith the proposal of premature
release of all eligible prisoners to Zonal Deputy Inspector
General of Prisons by 31 st October every year.”
5. Each Zonal Deputy Inspector General of Prisons was required
to examine all proposals in light of the policy so as to e nsure that no
eligible person is left out of consideration. Each Zonal DIG had to submit
the proposal to the Inspector General of Prisons annually by 15 November.
The Inspector General of Prisons was further required to forwa rd the
proposal to the Government annually by 30 November. A Committee
was constituted in terms of para 8 of the policy for e xamining and
disposing all cases upon the receipt of the proposal. The Committee was
required to submit its recommendations for premature release of convicted
prisoners sentenced to imprisonment for life to the Government annually
by 15 December on which the Government was to take a decision i n
terms of the prescribed procedure.
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6. On 28 July 2021, an amendment was brought about to the policy.
Para 2(b) of the earlier policy document dated 1 August 201 8 was
modified so as to provide that a convict undergoing imprisonment for life
would not be released until the age of sixty years is attained. Para 2(b)
as amended on 28 July 2021 was in the following terms:
“2(b) Such male convicted prisoners sentenced to imprisonment
for life and are incarcerated in prison, whose crime is not
covered by any of the sub-rule under prohibited category
defined in para-3 below and who have completed age of 60
years and have undergone, including undertrial custody,
sentence of 16 years without remission and 20 years with
remission.”
7. However, convicts falling within the prohibited category set out
in para 3(vi) of the original policy document were granted a relaxation in
the amended policy dated 28 July 2021. Para 2(g) of the amended policy
dated 28 July 2021 is as follows:
“2(g) Such convicted prisoners sentenced to imprisonment for
life and are incarcerated in prison, whose crime is covered
by the sections mentioned in prohibited category in sub-
rule-(vi), (viii) and (ix) of para-3 below, and who have
completed age of 60 years and have undergone, including
undertrial custody, sentence of 25 years without remission
and 30 years with remission.”
8. The imposition of the requirement that a convict undergoing
imprisonment for life would not be eligible for premature release until
attaining the age of sixty years led to the institution of petit ions under
Article 32 of the Constitution before this Court. The challenge was inter
alia on the ground that the plea for premature release must be considered
on the basis of the law as it stood on the date of conviction and that a
subsequent policy which operates to restrict the ambit of a policy
prevailing on the date of conviction must not be allowed to obstruct the
plea for release. Moreover, it was urged that the require ment that a
convict cannot be considered for premature release before the age of
sixty would violate the right to life under Article 21 by subjecting a convict
to long years of incarceration. In several judgments of this Court,
including State of Haryana v Jagdish,1 it has been held that an
1 (2010) 4 SCC 216
RASHIDUL JAFAR @ CHOTA v. STATE OF UTTAR PRADESH
& ANR. [DR DHANANJAYA Y CHANDRACHUD, J.]
application for premature release has to be considered on t he basis of
the policy as it stood on the date when the accused was convicted of the
offence by the trial court. A similar view was taken in State of Haryana
v Raj Kumar @ Bitu.2
9. Subsequently, on 27 May 2022, the policy dated 1 August 2018
(as amended on 28 July 2021) was further amended. The amendments
are specific to paras 1, 2(b), 2(f) and 2(g) and by the insertion of para 12
in the policy dated 1 August 2018, as amended. For the present purpose,
it would suffice to note that the requirement that a convict u ndergoing
life imprisonment could be considered for release only after attaining the
age of sixty has been deleted. The amended clause in t erms of the
amendment dated 27 May 2022 reads as follows:
“2(b) All such male convicted prisoners sentenced to imprisonment
for life and are incarcerated in prison, whose crime is not
covered by any of the sub-rule under prohibited category
defined in para-3 below and who have undergone, including
undertrial custody, sentence of 16 years excluding remission
and 20 years including remission.”
10. Moreover, as regards prisoners who fall in the prohibited
category contained in para 3(vi), the relevant clause reads as follows:
“2(g) All such convicted prisoners sentenced to imprisonment for
life and are incarcerated in prison, whose crime is covered
by the sections mentioned in prohibited category in sub-
rule–(vi), (viii) and (ix) of para-3 below, and who have
undergone, including undertrial custody, sentence of 25 years
with excluding remission and 30 years including remission.”
11. Following the amendment, counter affidavits were filed before
this Court in several pending proceedings, including among th em the
following:
(i) Dev Nath Singh v State of U P;3
(ii) Rajkumar v The State of Uttar Pradesh;4 and
(iii) Brij Bhushan v The State of Uttar Pradesh.5
2 (2021) 9 SCC 292
3 Writ Petition (Crl) No 528 of 2021 decided on 21 F ebruary 2022
4 Writ Petition (Crl) No 36 of 2022 decided on 11 Ma rch 2022
5 Writ Petition (Crl) No 75 of 2022 decided on 14 Ma rch 2022
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12. The orders of this court in above petitions under Article 32
noted that the cases of the convicts undergoing life imprisonment would
be dealt with in accordance with the policy as it existed prior to the
amendment which was brought about on 28 July 2021.
13. In order to facilitate the disposal of this batch of c ases, an
order was passed by this Court on 24 August 2022 requiring a tabulated
statement to be prepared dealing with:
(i) The offence for which the petitioners were convicted;
(ii) The date of the judgment of the trial court;
(iii) The year of the filing of the criminal appeal before the High
Court;
(iv) The period of imprisonment undergone:
(a) Without remission; and
(b) With remission;
(v) Whether the petitioners are on bail; and
(vi) The current status of the application for premature release .
14. Such a statement has been shared by counsel for the petitioners
and has been shared with Ms Garima Prashad, AAG appearing on behalf
of the State of Uttar Pradesh. The AAG has facilitated a due verification
and submitted a statement containing the details of 512 prisoners covered
by the present batch of cases, whose cases would require to be considered
in terms of the policy. The statement is annexed to this order.6
15. We have heard learned counsel appearing on behalf of the
petitioners in the proceedings under Article 32 of the Constitution and
Ms Garima Prashad, AAG.
16. The implementation of the policy for premature release has to
be carried out in an objective and transparent manner as ot herwise it
would impinge on the constitutional guarantees under Articles 14 and
21. Many of these life convicts who have suffered lo ng years of
6 Annexure-A
RASHIDUL JAFAR @ CHOTA v. STATE OF UTTAR PRADESH
& ANR. [DR DHANANJAYA Y CHANDRACHUD, J.]
incarceration have few or no resources. Lack of literacy, education and
social support structures impede their right to access le gal remedies.
Once the state has formulated its policy defining the terms for premature
release, due consideration in terms of the policy must be given to all
eligible convicts. The constitutional guarantees against arbitrary treatment
and of the right to secure life and personal liberty must not be foreclosed
by an unfair process of considering applications for premature release in
terms of the policy.
17. Significantly, the policy has been amended to remove the
requirement of convicts submitting an application for premature release
and instead places the responsibility on the officers of the state to consider
eligible prisoners. The prison administration, legal services authorities at
the district and state level and officers of the police department and the
state must diligently ensure that cases of eligible prisoners are considered
on the basis of policy parameters. We have gained a distinct impression,
based on the cases which have come before the court here and even
earlier that there is a general apathy towards ensuring tha t the rights
which have been made available to convicts who have served out their
sentences in terms of the policy are realized. This results in the deprivation
of liberty of those who are entitled to be released. The y languish in
overcrowded jails. Their poverty, illiteracy and disabilities occasioned by
long years of incarceration are compounded by the absence of supportive
social and legal structures. The promise of equality in our Constitution
would not be fulfilled if liberty were to be conditional on an individual’s
resources, which unfortunately many of these cases provide hard evidence
of. This situation must change and hence this court has had to st ep in.
We now proceed to formulate peremptory directions.
18. We direct that:
(i) All cases for premature release of convicts undergoing
imprisonment for life in the present batch of cases shall be
considered in terms of the policy dated 1 August 2018, as
amended, subject to the observations which are contained
herein. The restriction that a life convict is not eligible for
premature release until attaining the age of sixty years ,
which was introduced by the policy of 28 July 2021, stands
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deleted by the amendment dated 27 May 2022. Hence, no
case for premature release shall be rejected on that ground;
(ii) In the event that any convict is entitled to more liber al
benefits by any of the amendments which have been brought
about subsequent to the policy dated 1 August 2018, the
case for the grant of premature release would be considered
by granting benefit in terms of more liberal amended para/
clause of the policies. All decisions of premature release of
convicts, including those, beyond the present batch of cases
would be entitled to such a beneficial reading of the policy;
(iii) In terms of para 4 of the policy dated 1 August 20 18, no
application is required to be submitted by a convic t
undergoing life imprisonment for premature release. Further,
through amendment dated 28 July 2021, para 3(i), which
included convicts undergoing life imprisonment who have
not filed application for pre-mature release in the prohibited
category, has specifically been deleted. Accordingly, all cases
of convicts undergoing life sentence in the State of Uttar
Pradesh who are eligible for being considered for premature
release in terms of the policy, including but not confined to
the five hundred and twelve prisoners involved in the present
batch of cases, shall be considered in terms of the procedure
for premature release stipulated in the policy;
(iv) The District Legal Services Authorities in the St ate of Uttar
Pradesh shall take necessary steps in coordination with the
jail authorities to ensure that all eligible cases of prisoners
who would be entitled to premature release in terms of the
applicable policies, as noticed above, would be dul y
considered and no prisoner, who is otherwise eligible for
being considered, shall be excluded from consideration.
(v) These steps to be taken by DLSAs would, include but not
be limited to, Secretaries of DLSAs seeking status report
on all prisoners undergoing life imprisonment in the prisons
falling under their jurisdiction in terms of the format of table
RASHIDUL JAFAR @ CHOTA v. STATE OF UTTAR PRADESH
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prepared in Annexure-A covering the details mentioned in
para 13 of this judgment and ensuring its submission by
relevant authorities within eight weeks of this order as well
as on an annual basis. Further, DLSAs would utilize this
status report to monitor and engage with respective
authorities to ensure the implementation of our directions
to ensure premature release in terms of applicable policies
in all eligible cases of convicts undergoing life sentence on
a continuous basis;
(vi) The applications for premature release shall be consid ered
expeditiously. Those cases which have already been
processed and in respect of which reports have been
submitted shall be concluded and final decisions intimated
to the convict no later than within a period of one month
from the date of this order. Cases of eligible life convic ts
who are (i) above the age of seventy years; or (ii) suffering
from terminal ailments shall be taken up on priority and
would be disposed of within a period of two months. The
Uttar Pradesh State Legal Services Authority shall, within
a period of two weeks, lay down the priorities according to
which all other pending cases shall be disposed of. All other
cases shall, in any event, be disposed of within a period of
four months from the date of this order; and
(vii) Where any convict undergoing life imprisonment has already
been released on bail by the orders of this Court, the order
granting interim bail shall continue to remain in operation
until the disposal of the application for premature release.
19. The petitions are accordingly disposed of. A copy of the present
judgment shall be transmitted also to the Secretary of the UP State Legal
Services Authority.
20. In view of the disposal of the petitions, pending applications
stand disposed of.
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Nidhi Jain Matters disposed of.