Above: Representative image/ Photo: Anil Shakya

The Kerala High Court has quashed the premature release of 209 prisoners by the state government as it found too many anomalies in the procedure. The government will now move the Supreme Court

By NV Ravindranathan Nair in Thiruvananthapuram

In a piquant situation, the fate of 209 prisoners in Kerala hangs in the balance. In 2011, the previous LDF government had ordered the premature release of prisoners who had completed 10 years in jail. In a recent development, the Kerala High Court has quashed this order.

However, the present LDF government has said that it is impractical to bring back those who were released more than seven years ago.

The full bench of the High Court comprising Chief Justice Hrishikesh Roy and Justices K Abraham Mathew and AK Jayasankaran Nambiar directed that the proposal for premature release of 209 prisoners shall be examined afresh within six months.

In 2011, the government of Chief Minister VS Achuthanandan had invoked Article 161 of the Constitution and ordered the premature release of 209 prisoners who had completed 10 years’ imprisonment or more. Many writ petitions were filed challenging this move by the government.

Following the High Court order, the present government has started contacting the prisoners after collecting their addresses from the Department of Prisons. It has been pointed out that some of these prisoners have died and some are settled in other states or have even left the country.

However, the High Court has not insisted on taking the released prisoners into custody urgently as many of them had not been impleaded in the writ petitions. But home department sources told India Legal that in view of the practical difficulty in bringing them back, it had decided to trace them immediately. Officials say that as the High Court had ordered that the activities of the released prisoners in the last seven years be examined in detail during the review, it is important to trace them immediately. Some of the convicts released were linked to political parties. The home department has said that none of the prisoners were involved in any crime or got convicted since their release in 2011.

Meanwhile, Chief Minister Pinarayi Vijayan’s private secretary and CPI(M) leader MV Jayarajan has made it clear that the government will move the Supreme Court challenging the High Court verdict as it is an encroachment on the state’s powers.

The High Court had found that less than five of the released prisoners who had been sentenced to life terms had completed 14 years. Surprisingly, there were over 100 convicts who had spent less than 10 years among those released (See box).

In 1978, the government had brought in an additional “A” provision in Section 433 of the Code of Criminal Procedure (CrPC). In Maru Ram vs Government of India, the Supreme Court said that for life term, incarceration would be till the end of life. It made it clear that remission was not a privilege of the convicted.

However, several judicial commissions had recommended remission for sentenced persons. But they also said that there should be utmost scrutiny while granting remission and such concessions should not be given to those who have committed heinous crimes against women and children.

The High Court said: “The exercise of constituent power under Article 161 of the Constitution by high constitutional functionaries must take note of the effect of the decision on the family of the victims, the society as a whole and precedent it sets for the future.”

During the hearing, the Court had called for files from the state government to examine the procedure followed while issuing the order releasing the prisoners. Perusing these files, the bench noted that the selection of prisoners for premature release was based on the finding by the government that jails in the state were overcrowded and it was getting difficult to provide minimum required facilities for the prisoners.

The files also revealed that retention of prisoners in jail was becoming expensive for the state and there was no necessity to retain prisoners beyond 10 years when they had reformed and a threat to society did not appear probable. The Court noted there was no consideration of the case of each prisoner vis-à-vis special circumstances that called for a departure from the mandate of Section 433 of the CrPC.

The bench observed: “Our scrutiny of the files reveals that the only material available before the Council of Ministers was the Cabinet note, that was put up together with the statement showing the actual period of imprisonment undergone by the prisoners, the gist of the case that led to the conviction, and remarks showing whether they had been recommended for a premature release by the police authorities, probationary officers or both and whether or not they fell within the excluded categories of prisoners as per the guidelines formulated by the state government. There is nothing to suggest that the Council of Ministers was informed of the particular circumstances that warranted a recommendation for premature release of a prisoner who had an adverse report from either the police authorities or the probationary officer and a favourable report from the other. Similarly exceptional factors that were taken into account for exempting the prisoners concerned from the rigours of 433A of the CrPC were also not made available before the Council of Ministers or for that matter before the Governor.”

It added: “In our view, the said lapses on the part of the state government would vitiate the impugned government order and the approval granted to it by the Governor, since the exercise of constituent power under Article 161 of our Constitution by high constitutional functionaries must take note of the effect of the decision on the family of the victims, the society as a whole and precedent it sets for the future.”

The Court clarified: “We make it clear that if no decision is taken by the functionaries under Article 161 within the said period of six months, it will be deemed that there is no exercise of power under Article 161 in favour of prisoners concerned and steps shall be taken to reincarcerate such prisoners for serving out the remainder of their sentence.”

The High Court verdict has come as a rude shock to the government which wanted to grant concessions to convicts involved in political killings.

While pressure is mounting on it from its party villages in Kannur (where many political killings have taken place) to grant premature remission to the convicts, the Court verdict will dissuade it from doing so.