IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 WP(C).No. 20681 of 2006(S) ------------------------------------- PETITIONER: ------------------ V.J.JAYAKUMAR ABRAHAM, ADVOCATE, TRIVANDRUM, RESIDING AT SHALEM HOUSE, MANATHOTTAM, VELLARADA P.O., NEYYATTINKARA TALUK, TRIVANDRUM DISTRICT. BY ADV. SRI.S.JAMES VINCENT RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE DIRECTOR OF PRISONS (ADDL.DIRECTOR GENERAL OF POLICE), POOJAPPURA P.O., THIRUVANANTHAPURAM-12. 3. THE UNION OF INDIA, REP. BY THE SECRETARY TO GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI- 110001. *ADDL. R3 IS IMPLEADED BY ORDER DATED 21/11/2006 IN IA NO. 15778/2006) GOVERNMENT PLEADER SRI. NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 20681/2006 S APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE PRESS REPORT IN IN MALAYAMA MANORAMA DATED 07/08/2006. EXT.P1A. COPY OF THE PRESS REPORT IN MALAYALA MANORAMA DT. 11/08/2006. RESPONDENT'S EXHIBITS nil. True copy tga 16. Now we shall consider whether any or all of the rules in Chapter XXVI, XXVI A and XXXII of the Kerala Prison Rules, 1958 are to be quashed. Chapter XXVI of the Rules deals with 'leave'. Rule 452 A defines 'leave' which provides that there shall be two kinds of leave - emergency and ordinary. Rule 452B deals with 'eligibility for leave'. Rule 452 BB deals with 'emergency leave'. 17. Rule 453 deals with 'maximum period of leave'. Rule 454 provides 'the authority who is competent to grant leaves'. Rule 455 deals with 'grounds for grant of leave'. Rule 456 provides that there shall be petitions and to whom the petitions shall be addressed. Rule 457 deals with the persons who are competent to file petitions. It provides that the petition for leave shall be filed either by the prisoner or relative of the prisoner. It also provides that the documents to accompany the petitions. Rule 457 deals with 'appeal'. Rule 458 deals with 'exemptions from furnishing security'. Rule 459 deals with 'execution of bonds'. Rule 460 deals with 'decision on petitions'. Rule 461 deals with 'treatment of the period of leave'. Rule 462 deals with 'travelling expenses'. Rule 463 provides that no prisoner against whom a case is pending is entitled to leave. Rule 464 deals with 'supervision'. Rule 465 deals with 'power to recall'. Rule 466 provides 'time for release'. 18. Chapter XXVI A consists of only one rule - Rule 466 A which deals with 'home leave'. Chapter XXXII deals with 'advisory board and its procedure. Even for release of a prisoner in accordance with the provisions of Sections 432 and 433A of Criminal Procedure Code details of each case has to be considered and a decision taken. The role of the Advisory Board is to advise the Government. So we do not find any reason to quash any of the provisions under Chapter XXXII also. 18. The main attack in this proceedings is directed against Rule 452BB which deals with Emergency leave. Power of the Government to grant emergency leave and that of the Home Minister to extend the same is under challenge. Rule 461 which deals with 'treatment of leave' is also under challenge. Rule 452B reads as follows: “452 B. Eligibility for Leave:- Well behaved prisoners sentenced to imprisonment for one year and above and who have served out actually 1/3rd of the sentence or two years whichever is less are eligible for ordinary leave. Any well behaved convicted prisoner is eligible for emergency leave. A prisoner once released on leave of any kind will not be eligible for a subsequent release on leave until the completion of six months of actual imprisonment to be counted from the date of his last return from leave provided that this will not apply to the grant of leave to a prisoner in an emergency due to the death or serious illness of any near relative specified in rule 455. Whenever recommends a prisoner is to be released in parole such petition to Government should accompany the reports of Superintendent of Police and Probation Officer vide G.O.32342/SC3/92/Home dated 6.5.1992. Note- xxxxxxxx Provided that the following categories of prisoners shall not be eligible for being released on leave - (i) Prisoners sentenced under the Narcotic Drugs and Psychotropic Substance Act, 1985; (ii) Offenders classified as habituals; (iii) Prisoners sentenced under section 392 Note:-xxxxxxxxxx (iv) Prisoners who are considered dangerous or who are involved in serious prison violation like assault, out break, mutiny, escape, instigators to serious violations, strike, etc. and the like; (v) Prisoners suffering from unsoundness of mind or contagious diseases. Note:-xxxxxxxxx” The petitioners were not able to point any infirmity or arbitrariness in Rule 452B. Rule 452BB reads as follows: “452BB. Notwithstanding anything contained in this Chapter Government may, grant emergency leave to any prisoner exempting him from all or any of the provisions relating to the granting of leave subject to the following conditions, namely:- (i) The Secretary, Home Department shall be the authority competent to sanction leave under this rule; (ii) Leave under this rule shall be granted only in very exceptional circumstance, such as death or serious illness of father, mother, son, daughter, wife, husband, brother, or sister, marriage of son or daughter and partial or complete loss of residential building due to natural calamities. Each case shall be considered on merits with reference to the report of the Sub Inspector of Police concerned and the recommendation of the Superintendent of the Jail as provided in clause (iv) and the Certificate mentioned in rule 457. The petition for leave shall be submitted through the Superintendent of the Jail where the prisoner is confined. (iii) Leave under this rule shall be sanctioned only for a maximum period of 15 days. Any extension of this period subject to a maximum of 45 days in the aggregate, shall be ordered only by the Minister in charge of Home Department. (iv) Every petition for leave shall be accompanied with a report from the Sub Inspector of Police concerned on the repercussions on the law and order situation if the prisoner is released on leave, particularly his own safety as well as that of others, the possibility, if any, of the prisoner absconding, instances of previous misconduct on his part when on leave earlier and on such other relevant points. The Superintendent of the Jail shall give his specific recommendation with due reference to the conduct of the prisoner in prison his previous history in relation to leave, the possibility of his absconding and also the aggregate number of days of leave he has already enjoyed. (v) Before a prisoner is released on leave, he shall execute a bond with two sureties for Rs.10,000 each undertaking to return to the prison on the expiry of leave. (vi) A person convicted in respect of any offence relating to narcotic drugs or psychotropic substances or any law relating to smuggling or violation of foreign exchange regulations or national security shall not be eligible for leave. (vii) A person who fails to return to the prison after leave on the due date shall not be eligible for sanction of leave for a period of one year from the date of return from such unauthorised absence, unless Government are satisfied that such failure was due to reasons beyond his control and the period of overstayal is regularised as leave. (viii) A person who has absconded while on leave earlier shall not be eligible for sanction of leave under any circumstances.” Rule 452BB was incorporated in the Rules with effect from 4.9.1976. The rule then stood was as follows: “452BB. Notwithstanding anything contained in Chapter XXVI these Rules Government may, in deserving cases grant leave to any prisoner, exempting him from all or any of the provisions relating to the granting of leave.” 19. Challenging Rule 452BB petitioner in W.P.(C) No.20681/2006 had filed O.P.No.3489/1993 and Crl.M.C.No.1565/1992 before this Court. A learned Single Judge of this Court allowed the Original Petition. The decision is reported in V.J.Jayakumar Abraham v. State (1993(1) KLJ 676). We fully agree with the reasons stated by the learned Single Judge. This Court held as follows: “The Statute in question does not indicate legislative policy, nor lay down guidelines for grant of parole. For that matter even the rule does not indicate cases in which parole is to be granted, or considerations upon which parole is to be granted.” It also held as follows: “As already noticed, neither the Prisons Act, nor even the Rules prescribe any condition or guideline for grant of paroles. While Chapter XXVI of the Rules makes provision for ordinary leave and emergency leave (parole), a third category outside the Chapter is envisioned by rule 452 (BB). All that is needed to invoke this rule, is the opinion of the Government that a particular case is a 'deserving' case. Nothing could be more subjective or arbitrary, than such a prescription. Many concepts are elastic, but few could be more elastic. Opinions may differ and differ vastly too, as to what is 'deserving'. The vice of arbitrariness taints the rule.” Finally it was held as follows: “Rule 452(BB) embodies no guidelines, nor principle, nor philosophy. The rule leaves open the door for predilections, passions and caprice. The Government may decide which is a deserving case, by humour. Nothing could be more arbitrary - less predictable. Uncanalised and unguided discretion without enunciation of legislative policy, or principles upon which discretion is to be exercised, taints the rule with the vice of arbitrariness. Government can pick and choose, with an evil eye and an unequal end. The files and the instances mentioned by petitioners demonstrate arbitrariness in action, and free play of unguided discretion. It follows that rule 452(BB) of the Kerala Prison Rules has to be struck down as arbitrary, ultravires of the Statute, and violative of Article 14 of the Constitution of India. It is accordingly struck down. This will not stand in the way of appropriate provisions being made in accordance with law.” Rule was struck down. Thereafter Rule 452BB was introduced with effect from 7.9.1993. The stand taken by the Government is that in Jayakumar Abraham's case (supra) this Court allowed the State to make rule in accordance with law and hence the rule was redrafted taking into account all things. 20. In this connection we may refer to the recommendations made by the High Level Committee headed by Justice V.R.Krishna Iyer, appointed by the Government. It was stated as follows: “VI. Circumstances under which emergency leave is granted. Presently, both rule 452BB(ii) and rule 455 refer to the grounds. The Committee noted that there is considerable overlap between these two provisions. There is need for coalescing of the provisions in the interest of clarity and textual economy. While discussing the actual grounds certain corrections were found necessary. Serious illness of close relatives is one of the grounds. This, the Committee felt could lead to misuse. The Committee favoured substitution of terminal illness to serious illness. Recommendations C. The following would become grounds for granting emergency leave. Death or terminal illness of father, mother, son, daughter, wife, husband, brother or sister and uncle in the case of Marumakkathayam families. Marriage of son or daughter. Partial or complete loss of residential building due to natural calamities. Any extraordinary reasons recommended by the Probation Officer as necessitating the grant of such leave. These provisions will be contained in a single rule to lend clarity, consistency and avoid duplication. VII. Processing cases. VIII. Who may apply and to whom to be addressed. IX. Accompanying documents. X. Bond requirements. XI. Penal provisions. XII. Appeal. The present provisions are found workable in respect of the above. So no amendments/recommendations made. XIII. Extension provisions Observations of the High Court on the question of indiscriminate sanction and extension of emergency leave and premature release have already been highlighted in para 7 above. The central point made in the observations is that extensions were indiscriminately given as seen in the imprisonment history of the quoted cases and the total duration of emergency leave, including extensions, enjoyed by such prisoners in comparison with the period of imprisonment forms substantial portion of the latter. The result is that on flimsy grounds and on the basis of undue influence, prisoners, who can wield influence, avoid imprisonment.” 21. A reading of Rule 452BB as amended shows that the Government has not introduced any thing new at all. As per the Original Rule emergency leave can be granted only to 'deserving cases'. In the new Rule those words were deleted to give unbridled and unlimited power to the Government to grant emergency leave. The present Rule is subjective and arbitrary. There is no guideline or control. Emergency leave can be granted for any number of occasions. 22. Rule 457 provides that the petition shall be presented by a prisoner or by a relative of the prisoner. But an application for emergency leave can be filed any wayfarer In fact the materials on record show that mostly such applications are filed by political leaders, MLAs, etc. That fact leads to a very serious situation. Any member of an organised gang pretending to be a friend of the prisoner can file such a petition and upon release they can abduct the prisoner and cause harm to him. The reports submitted by the Vigilance and Anti-corruption Bureau establish the connections between criminals and politicians. So we are of the considered opinion that only the convict or his relative shall be permitted to file such a petition. If such a relative is a politician he may file the application but in the application he shall state his relationship with the prisoner. 23. Sub-rule (i) of Rule 452BB provides that the Secretary, Home Department is the authority competent to sanction the leave. A reading of the Rule shows that power under Rule 452BB is exercised by the Government. The Secretary, Home Department is signing the order for and on behalf of the Government. The provisions of Sub-rule (iii) of Rule 452BB deals with the duration of the leave. But the Rule confers power to the Home Secretary to grant leave for maximum 15 days. It also confers power to a Minister-in- charge of Home Department to extend the leave subject to eligibility to maximum of 45 days. Is the Hon'ble Minister in charge of Home Department an appellate authority? Has he got any statutory authority to extend the leave sanctioned by the Government? 24. Chapter II of the Constitution of India deals with 'The State Executive'. Article 154 of the Constitution of India provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 163 of the Constitution of India provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in exercise of his functions, except in so far as he is by or under the constitution required to exercise his functions or any of them in his discretion. Article 164 of the Constitution provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minsiter and the Ministers shall hold office during the pleasure of the Governor. It reads as follows: “Art.164. (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. (5) The salaries and allowances of the Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.” Article 166 of the Constitution deals with the conduct of Government business. It reads as follows: “Art.166. (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made on executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution to act in his discretion.” A reading of Article 166 shows that when a Secretary signs the order it is for and on behalf of the Governor. Article 166(3) confers power to the Governor to frame rules of business. It provides that the Governor may allocate all his functions to Ministers, except those which he is required by or under the Constitution to exercise in his own discretion; and in relation to the business allotted to perform such functions as may be assigned to him. The Governor of Kerala had framed rules of business in exercise of the powers conferred by Clauses (2) and (3) of Article 166 of the Constitution. Learned Advocate General relying on Rule 22 of the Rules of business has argued that the Minister has power to enlarge the time fixed by the Government. Rule 22 of the Rules of Business reads as follows: “22. Except as otherwise provided by any other rule, cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the department. Copies of such standing orders shall be sent to the Governor and the Chief Minister.” 25. We find it extremely difficult to agree with the argument of the learned Advocate General that Rule 22 confers power on the Minister to extend the time limit fixed by Governor. Rules of business were framed for the discharge of the functions of the executive power. There is absolutely no provision either under Article 164 which confers any appellate or statutory power to a Minister. The position of the Minister in relation to that of a Governor is subordinate. In Emperor v. Sibnath Banerji (AIR 1945 Privy Council 156) it was held as follows: “.........their Lordships are unable to accept a suggestion by counsel for the respondents that the Home Minister is not an officer subordinate to the Governor within the meaning of S.49 (1), and so far as the decision in I.L.R. (1939) 2 Cal. 411, decides that a minister is not such an officer their Lordships are unable to agree with it. While a minister may have duties to the Legislature, the provisions of S.51 as to the appointment, payment and dismissal of ministers, and S.59(3) and(4) of the Act of 1935, and the Business Rules made by virtue of S.59, place beyond doubt that the Home Minister is an officer subordinate to the Governor.” The principle laid down in Sibnath Banerji's case was confirmed by a Constitution Bench of the Apex Court in M. Karunanidhi v. Union of India (AIR 1979 SC 868). The relevant portion reads as follows: “Three facts, therefore, have been proved beyond doubt:- 1. That a Minister is appointed or dismissed by the Governor and is, therefore, subordinate to him whatever be the nature and status of his constitutional functions. 2. That a Chief Minister or a Minister gets salary for the public work done or the public duty performed by him. 3. That the said salary is paid to the Chief Minister or the Minister from the Government funds.” The Business Rules framed under Article 166(3) of the Constitution does not confer any power to a Minister who is a subordinate to the Governor to alter a decision taken by the Governor in discharge of his executive powers. 26. There is yet another aspect. Rule 452BB was introduced for granting emergency leave. The word 'emergency' means unforeseen combination of circumstances calling for immediate action. In 3rd edition of 'Advanced Law Lexicon' written by P.Ramanatha Aiyar the word 'emergency' is defined as follows: “Emergency. Any event or occasional combination of circumstances which call for immediate action or remedy; pressing necessity; exigency; a sudden or unexpected happening; an unforeseen occurrence of condition.” 'Emergency' means an unforeseen combination of circumstance or the resulting state that calls for immediate action. It is very difficult to hold that the emergency will subsist for a period of 45 days. If it is death or destruction of a building the things must become normal within a few days. If the illness persist for 45 days it can be described as an emergent situation. So it is evidently clear that Rule 452BB is reintroduced only for the purpose of granting favours to the criminals of political parties, especially the criminals of party- in-power. Sub-rule (vii) of Rule 452BB confers power on the Government to condone every overstay and regularise the same as leave. That also is against the very concept of emergency. So even after 45 days a person who goes out of the prison on the strength of the emergency leave can keep away from Jail for any number of days. He can then come with a petition and exercising political influence get it regularised as emergency leave. When the Government itself fixed the outer time limit it has no power to treat any further period as leave. In this connection it is also pertinent to note that the High Level Committee also recommended that the power now vested with the Ministers is to be taken away. It is recommended that the power shall be given to the State. So that provision is also illegal and liable to be quashed. 27. Going by the rules the Superintendent of Prison has given power to grant emergency leave for 7 days, Inspector General of Prisons for 10 days and the Government for 15 days and maximum period is 45 days. The rule does not confer any power to the Government to treat any overstay of any kind of leave, emergency or ordinary, as leave or bail. The materials on record shows that there is a practice of treating the overstay as leave. We already held that the Prisons Act, 1894 or the Prisons Act, 1950 do not contain any provision to grant leave. The Kerala Prison Rules, 1958 also does not confer any power to the Government to treat the overstay as leave. So, if any person who was released on leave fails to return within the time allowed by law, the Government cannot treat the same as leave or bail and that period has to be treated as absconding or unauthorised absence and the person who does