Supreme Court: "Merely because a practice has been followed in the Madras High Court of issuing such type of writs for a long time cannot clothe these orders with legality if the orders are without jurisdiction."
The bench comprising of Justice S. Abdul Nazeer & Justice Deepak Gupta passed a judgement in case titled as The Home Secretary(prison) & Ors. v. H. Nilofer Nisha.
The Case background:
The detenus whose release was sought were convicted for various offences including the offences under Section 302 of the Indian Penal Code, 1860. In all cases, they have been sentenced for life. The petitions for habeas corpus were filed on the ground that the State has not given the benefit of the premature release to the petitioners whereas many others have been given the benefit.
It was contended that in all the cases the petitioners were convicted of the offences of murder which conviction was upheld till the Court and, therefore, by no stretch of imagination, can it be urged that the detention of the detenus was illegal. On the other hand, it was contended by learned senior counsel appearing on behalf of the detenus that the High Court of Madras has passed hundreds of orders of this nature but the State has selectively chosen to challenge only a few of them.
The question which arose before the Supreme Court was whether a writ of habeas corpus would lie, for securing release of a person who is undergoing a sentence of imprisonment imposed by a Court of competent jurisdiction praying that he be released in terms of some Government Orders / Rules providing for premature release of prisoners.
The Supreme Court observed that,
• 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 personal 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. A writ of habeas corpus will not lie and such a prayer should be rejected by the Court where detention or imprisonment of the person whose release is sought is in accordance with the decision rendered by a Court of law or by an authority in accordance with law.
“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. 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.” the Court remarked.
The Supreme Court observed that the High Court erred in directing the release of the detenu forthwith without first directing the competent authority to take a decision in the matter. Merely because a practice has been followed in the Madras High Court of issuing such type of writs for a long time cannot clothe these Orders with legality if the orders are without jurisdiction. Past practice or the fact that the State has not challenged some of the orders is not sufficient to hold that these Orders are legal.
Further the Court held that the order would be more in the nature of a writ of mandamus directing the State to perform its duty under the Scheme. 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 in the nature of a writ of certiorari.
Read the Judgement:
