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Can Writ of Habeas Corpus be filed for securing early release of a prisoner? Supreme Court answers

Shruti Mahajan

The Supreme Court has held that a Writ of Habeas Corpus is not available to a prisoner in a situation where early release is sought under the government's scheme for remission.

The discretion for grant of parole or remission lies "squarely with the government", and the same cannot be claimed as a right, the Supreme Court stated.

The judgment was rendered by a Bench of Justices Deepak Gupta and Aniruddha Bose. The question under consideration was whether a Writ of Habeas Corpus would lie for the early release of a prisoner who is in jail on account of a judicial order by a Court of competent jurisdiction.

Justices S Abdul Nazeer and Deepak Gupta
Justices S Abdul Nazeer and Deepak Gupta

The Government of the State of Tamil Nadu came up with a scheme which facilitated early release of convicts sentenced to life imprisonment, subject to certain conditions. Certain convicts whose representations for early release were rejected under this scheme filed petitions before the Madras High Court.

The Madras High Court allowed these petitions, and directed for the release of the petitioners in light of the scheme laid down through the government order. The state, therefore approached the Apex Court in appeal against this decision.

It was contended on behalf of the state that by directing for the release of the prisoners and allowing their Habeas Corpus petitions, the High Court overstepped its powers and jurisdiction under Article 226 of the Constitution of India. Under the scheme, the High Court could have directed the concerned authorities to consider the representation but could not have ordered for the release of the prisoners, the state contended.

On the other hand, the petitioners argued that the state was being selective in challenging these orders before the Supreme Court and underlined that several similar orders have been passed by the High Court but were not appealed against by the state. The detenue petitioners also submitted that these prisoners have been incarcerated for a long time and would be entitled to be released under the normal principles for remission.

Before answering the question before it, the Bench took note of the fact that several times in the past, the Apex Court itself has not approved of the way release orders were passed by the Madras High Court, but had gone ahead to uphold the orders on account of the long time served by the prisoners.

Having said this, the Court moved on to chalk out the circumstances under which a Writ of Habeas Corpus is available. However, what the scope of this Writ does not include is when a person is under custody pursuant to a decision rendered by a Court of competent jurisdiction and in accordance with the law, the Bench held.

In the instant case, the petitioners had all been sentenced to life imprisonment and most were convicted for offences as grave as those under Section 302 of the Indian Penal Code. The decision on parole and remission lies with the government, the Court noted.

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.
Supreme Court

The Court further reiterated that matters of remission of sentence, parole and such, are matters of privilege and are not rights vested with the convict.

When a representation is made by a prisoner before the competent authority seeking parole or remission, the authority exercises its discretion to take a decision based on the facts and circumstances as well as reports prepared by the prison authorities and other relevant factors.

The court cannot exercise these powers though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rules.
Supreme Court

Further, the Court also held that if the custody of the prisoners is legal, then no writ of habeas corpus can be issued for release. The Writ of Habeas Corpus is specific to cases when personal liberty of a person is violated without the authorisation of law, it concluded.

[Read the judgment]

Home Secretary (Prison) vs H Nilofer Nisha.pdf
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