Case: The Home Secretary (prison) & Ors. vs. H.Nilofer Nisha
Case no.: Criminal Appeal no. 145,146,147 and 148 of 2020
Corum: Justice Deepak Gupta and Justice S.Abdul Nazeer
According to Dicey, “if, in short, any man, woman, or child is, or is asserted on apparently good grounds to be, deprived of liberty, the Court will always issue a writ of habeas corpus to anyone who has the aggrieved person in his custody to have such person brought before the Court, and if he is suffering restraint without lawful cause, set him free.” It is a settled principle of law that a writ of habeas corpus is available as a remedy in all cases where a person is deprived of his/her liberty.
It is processual writ to secure the liberty of the citizen from unlawful or unjustified detention whether a person is detained by the State or is in private detention. In this case, the scope of exercise of the writ of Habeas Corpus in respect of granting of premature release of convicted prisoners in pursuance a government order is been determined by the apex court in respect of the multiple appeals against the Madras HC.
In pursuance of the powers under Article 161 of the Constitution, the Governor of Tamil Nadu got a government order issued wherein a Scheme was framed for considering the cases of pre-mature release of convicted prisoners on the occasion of the Birth Centenary of Shri M.G. Ramachandran, former Chief Minister of Tamil Nadu.
This scheme was a multi-window procedure. Following the rules, a State-level committee and District committees were constituted. The District committees were to consider the cases of the prisoners and send their recommendations to the Range Deputy Inspector General of Prisons and Regional Probation Officer who, after examination of the same, were to send the same to the State level committee along with the recommendations.
Petitioners had made the representation before filing the petition in which they prayed for their release under the respective government order. The petitions for habeas corpus were filed on the ground that the State has not given the benefit of the premature release referred to above to the petitioners whereas many others have been given the benefit.
To this HC said that there is no issue on the fact that the convicted prisoners are entitled to release under the government order but according to the Probation Officer’s report they were denied the benefit of the order as it would be dangerous for the lives of the convict prisoners.
Further, HC was in the opinion that the detenu could not be denied release on the ground that the life of the detenu was in danger. However, it directed that the detenu be informed that his life may be in danger while releasing him.
In all the cases, reference has been made to the report of the Probation Officer. These petitions have been allowed by the High Court of Madras and allowing the writ of habeas corpus. This order of High Court has transgressed the jurisdiction conferred upon it under Article 226 of the Constitution of India while issuing the writ of habeas corpus and the matter was brought before the SC to determine the scope and ambit of the jurisdiction of the High Court while dealing with the writ of habeas corpus.
- Where detention or imprisonment of the person whose release is sought is under the decision rendered by a court of law or by an authority by law, the writ of habeas corpus is not applicable.
- Before issuing any writ of habeas corpus Court must conclude that the detenu is under detention without any authority of law. In these cases, the detenus have been sentenced to imprisonment for life and as such their detention cannot be said to be illegal. It is not for the writ court to decide whether a prisoner is entitled to parole or remission and these matters lie squarely in the domain of the Government.
- A writ of habeas corpus is maintainable by a person who is under detention if his rights are violated unlike in the present case.
- The grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations.
This order of SC is more like a writ of mandamus directing the State to perform its duty under the Scheme and also provides guidelines to the subordinate court. It says-
- The proper course for the Court was to direct that the representations of the detenus be decided within a short period. No hard and fast timelines can be laid down but the Court must give reasonable time to the State to decide the representation.
- The Court itself cannot examine the eligibility of the detenu to be granted release under the Scheme at this stage. There are various factors which have to be considered by the committees. The prescribed procedure duly needs to be followed out of which report of a probation officer is the first criteria followed by district committee recommendation and further with state committee recommendation which takes a final call on the matter.
- Further SC is of view that the High Court erred in directing the release of the detenu forthwith without first directing the competent authority to decide the matter. In case, as pointed out above, a petition is filed without any decision(s) of the State Level Committee, the Court should direct the concerned Committee/authority to decide within a reasonable period.
- The authorities must pass a reasoned order in case they refuse to grant benefit under the Scheme. Once a reasoned order is passed then obviously the detenu has a right to challenge that order but that again would not be a writ of habeas corpus but would be more like a writ of certiorari. In such cases, where reasoned orders have been passed the High Court may call for the record of the case, examine the same and after examining the same in the context of the parameters of the Scheme decide whether the order rejecting the prayer for premature release is justified or not. If it concludes that the order is not proper then obviously it can direct the release of the prisoner by giving him the benefit of the Scheme.
Edited by Vartika Gajendra Singh
Approved & Published – Sakshi Raje