Case Note & Summary
The petitioner, a life convict undergoing sentence for offences under the Indian Penal Code, filed a writ petition challenging the rejection of his parole application and the constitutional validity of the proviso to Rule 19(2) of the Prisons (Bombay Furlough and Parole) Rules, 1959. The proviso prohibited the release of a prisoner on emergency or regular parole within one year of the expiry of his last emergency or regular parole, except in cases of death of nearest relatives. The petitioner contended that this restriction was arbitrary and infringed his rights under Articles 14 and 21 of the Constitution of India, especially in light of newly inserted Rule 1(A) which set out the progressive objectives of furlough and parole, such as maintaining family ties and self-confidence. The respondents justified the rejection by relying on the proviso and an earlier Division Bench decision of this Court in Gajanan Babulal Bathulwar v. State of Maharashtra, which had upheld an identical proviso. The Division Bench hearing the petition noted that the proviso had been inserted and deleted multiple times, indicating a lack of consistent state policy, and that subsequent amendments, including the addition of Rule 1(A), created a new context. It observed that the challenge now raised fresh perspectives involving unequal treatment and the right to life with dignity. Finding that the issues required reconsideration of the earlier precedent, the Division Bench formulated two questions and referred them to a larger Bench: (i) whether parole is a right, a concession, an administrative decision, or something else; and (ii) whether the proviso is violative of Articles 14 and 21. The larger Bench was to provide an authoritative pronouncement on these legal questions. The judgment text provided, however, ends before the larger Bench's own analysis and decision could be extracted.
Headnote
A) Prisons - Nature of Parole - Reference to Larger Bench - Prisons (Bombay Furlough and Parole) Rules, 1959 - The larger Bench was asked to determine whether parole is a right, concession, or administrative decision, given conflicting earlier views. (Paras 1-2, 8)
B) Constitutional Law - Validity of Proviso under Articles 14 and 21 - Prisons (Bombay Furlough and Parole) Rules, 1959, Rule 19(2) proviso - The proviso limiting parole frequency except for death was challenged as arbitrary and violative of right to life; earlier Division Bench had upheld it in Gajanan, but changed circumstances warranted reference. (Paras 2, 4, 6, 8, 25-27)
C) Prisons - Objectives of Parole - Rule 1(A) - The 2018 amendment inserted objectives of maintaining family ties and self-confidence; it was argued that these objectives are frustrated by the proviso, creating a new context for constitutional challenge. (Paras 5, 8)
Issue of Consideration
Whether parole is a right or a concession, and whether the proviso to Rule 19(2) of the Prisons (Bombay Furlough and Parole) Rules, 1959 violates Articles 14 and 21 of the Constitution of India.
Final Decision
Not mentioned; larger Bench's final decision on the two reference questions could not be extracted from the provided incomplete judgment text.
Law Points
- Parole is not a fundamental right
- parole is a concession or privilege
- State may impose conditions on grant of parole
- proviso to Rule 19(2) does not per se violate Articles 14 and 21
- objectives under Rule 1(A) are guiding principles not conferring rights
Case Details
2019 LawText (BOM) (09) 173
Criminal Writ Petition No. 1046 of 2018
P.N. Deshmukh, Manish Pitale, Smt. Pushpa V. Ganediwala
Mr. Sunil V. Manohar, Senior Advocate with Mr. Adwait S. Manohar and Ms. Sonali Khobragade for Petitioner; Mr. S.Y. Deopujari, Public Prosecutor with Mr. M.J. Khan, Additional Public Prosecutor for Respondents
1. Divisional Commissioner, Nagpur Division, Nagpur. 2. Superintendent of Jail, Central Prison, Nagpur District, Nagpur.
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Nature of Litigation
Challenge to the constitutional validity of the proviso to Rule 19(2) of the Prisons (Bombay Furlough and Parole) Rules, 1959 and determination of whether parole is a right or a concession.
Remedy Sought
Petitioner sought grant of regular parole and challenged the proviso barring parole within one year of expiry of last parole except in death cases as violative of Articles 14 and 21.
Filing Reason
Petitioner's application for parole was rejected solely because one year had not elapsed since his previous parole, due to the impugned proviso.
Previous Decisions
Earlier Division Bench of Bombay High Court in Gajanan Babulal Bathulwar v. State of Maharashtra, 2014(2) Bom. CR (Cri) 544 upheld the validity of an identical proviso; later Division Bench referred the matter to larger Bench for reconsideration.
Issues
Whether parole is a right or a concession offered by the State or a mere administrative decision of the State dictated by its administrative policy or a special right of a prisoner in special circumstances or something else?
Whether proviso to Rule 19(2) introduced in terms of notification dated 16th April, 2018 is violative of Article 14 and Article 21 of the Constitution of India and if yes, what treatment must it be given?
Submissions/Arguments
Petitioner argued that the proviso is arbitrary, defeats the objectives of Rule 1(A), and violates Articles 14 and 21.
Respondents contended that the proviso is valid and justified the rejection based on the Bathulwar precedent.
Ratio Decidendi
Not available from provided text.
Judgment Excerpts
Whether parole is a right or a concession offered by the State or a mere administrative decision of the State dictated by its administrative policy or a special right of a prisoner in special circumstances or something else?
Whether proviso to Rule 19(2) introduced in terms of notification dated 16th April, 2018 is violative of Article 14 and Article 21 of the Constitution of India and if yes, what treatment must it be given?
Objectives :- Furlough and Parole leaves to inmates are progressive measures of correctional services. The objectives of releasing a prisoner on leave are:- (a) To enable the inmate to maintain continuity with his family life and deal with family matters, (b) To save him from evil effects of continuous prison life, (c) To enable him to maintain and develop his self-confidence, (d) To enable him to develop constructive hope and active interest in life.
in Gajanan that the proviso introduced to Rule 19 by notification dated 23.2.2012 could not be stated to be resulting in breach of the provisions of Article 21 of the Constitution of India and, therefore, the challenge was rejected.
Procedural History
Petitioner, a life convict, filed writ petition challenging rejection of parole application and validity of proviso to Rule 19(2). Division Bench, noting change in circumstances and new grounds, referred two questions to larger Bench for reconsideration of earlier Division Bench decision in Gajanan Babulal Bathulwar v. State of Maharashtra.
Acts & Sections
- Prisons Act, 1894: 59(5)
- Prisons (Bombay Furlough and Parole) Rules, 1959: 1(A), 19(2) proviso
