Under-Trial/Convicted Persons Do Not Have Absolute Right To Parole in Light of Coronavirus : Bombay High Court

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An important judgment was given by the Division Bench of the Nagpur bench of Bombay High Court concerning the constitutionality of Rule 19 of Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959 (Amended in 2020).

Facts of the Case

In this case, the Petitioners were lodged in different jails in Maharashtra and were permanent residents of different states. The Petitioners filed the writ petition before the Bombay High Court challenging the constitutionality of proviso to Sub Clause (ii) of Clause (C), Sub Rule 1 of Rule 19 of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959 (Amended in 2020) for violating Article 14 and 21 as it creates arbitrary discrimination on the grounds of “resident” and “non-resident” of Maharashtra for granting parole. 

Arguments on Behalf of the Petitioner

The Supreme Court in Suo Moto Writ Petition (Civil) No.1/2020 ordered the formation of a High Power Committee to review the conditions of the jail in India as the jails were already suffering from overcrowding. Due to COVID 19, there was an imminent risk of jails becoming new hotspots. The State Government brought the required amendment in the Prison Rules. Therefore, through the new amendment, it allowed the parole of 45 days considering the behaviour and nature of the offence for which the person is in jail.

The amendment created a different class of prisoners based on “residence” as the said amendment provided that the provision of parole and other conditions shall not apply to foreign nationals and the prisoners who resided outside Maharashtra. It was argued that the said amendment was violative of Article 14, as there was no reasonable classification for the application of the amendment.

Further, it was argued that the said amendment violated Article 21 as the Petitioner could get infected if parole was not granted.

Arguments on Behalf of the Respondent

The said amendment was argued to be constitutionally valid as the State government has the power to invoke reasonable classification. The said amendment aligned with the Apex Court Orders about the formation of a High Power Committee and how the states should take care of the menace of the overcrowding of the prisons.

Observations of the Court

The Supreme Court Order dated 13th April 2020 in Suo Moto Writ Petition (Civil) No. 1/2020 clarified that it did not ask the States to compulsorily release the prisoners. The previous orders were only in respect of asking state governments and Union Territories to tackle the spread of COVID 19 in Prison. The provision was constitutionally challenged before the principal bench of Bombay High Court in the case of National Alliance for People’s Movement v. State & Others on the ground that it violated Article 14 of the Constitution. The petition was rejected. The Court held that the High Powered Committee’s decision stood on the ground of “intelligible differentia” and this was upheld by the Supreme Court in National Alliance for People’s Movement v. State & Others

The High Powered Committee excluded the inmates who are “residents outside Maharashtra” from the application of the amendment on the ground that at that time the coronavirus was spreading at an unprecedented rate and all means of transport were stopped. Therefore, out of state resident inmates could have been at a bigger risk of the infection.  There were no absolute rights provided to the under-trial/convicted person by the Supreme Court order and the amendment in respect of parole. The amendment which was brought by the State government was only temporary and not in the nature of a permanent law.

Decision of the Court 

The Court upheld the said amendment and rejected the PIL filed by the prisoners and held that there was no violation of Articles 14 and 21 of the Constitution in light of the Hon’ble Supreme Court’s order in Suo Moto Writ Petition (Civil) No. 1/2020 and the judgments of Bombay High Court.  

Click here to read judgment


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