Freedom & Bail for those jailed for over 10 years: SC

Freedom & Bail for those jailed for over 10 years: SC In a series of judgements, the latest delivered on September 15, India’s Supreme Court has laid an emphasis on reformative justice

19, Sep 2022 | Tanya Aurora

“The idea of punishment has to be reformative. We do not want to punish people. They must be reformed and sent back to society. Any policy must consider this aspect of reformation in it.”

Justices S Abdul Nazeer and Krishna Murari

On September 15, 2022, the Supreme Court ruled that convicts who have spent 10 years in jail, and their appeal has not yet been heard, should be granted bail unless there are any compelling reasons to deny this, while remission should be considered for those who have completed 14 years in prison.

A bench of Justices Sanjay KishanKaul and A.S. Oka said the court is of view that those persons who have completed 10 years of their sentence, and their appeal would not be heard soon, and if there are no extenuating circumstances, such prisoners should be enlarged on bail. The top court said firstly, the convicts who have undergone more than 10 years imprisonment, unless there are reasons to refuse bail, be granted bail. It further emphasised on identification of cases where convicts have completed 14 years of custody, then their case can be referred to the government for considering premature release.

The bench further said that the said exercise of compiling data of those in custody for more than 10 and 14 years respectively is important and is to be done by all the high courts to facilitate this process. They said, “We have to keep in mind the objective of de-cluttering jails where without hearing of the appeals, convicts are in custody. The aforesaid exercise has to be undertaken on urgent basis so that the scenario should not prevail where the convict completes the minimum sentence for consideration of remission. That necessity has risen only on account of the fact that the appeals not taken up for hearing.”

Advocate Gaurav Agarwal, appointed as amicus curiae, informed the top court that affidavits were filed, as per its earlier orders to the six high courts to conduct the exercise of identifying life sentence convicts. He said, “If the convict has undergone more than 10 years imprisonment in life sentence cases, unless there are reasons to deny bail, in which case, the appeals may be taken up for hearing on priority basis.” In such cases, he recommended release of the convicts on bail, unless there were exceptional circumstances for not granting bail.

This present order, in the case of Sonadhar v/s State of Chhattisgarh SLP(Crl) No. 529/2021, is the latest order that has been issued by the Supreme Court after a series of directions being given by the Supreme Court to various governments and high courts in recent times. The Constitution of India inheres a right in every citizen of the country till her last breath, be it a free citizen or a prisoner, and this right is protected by the very Constitution which guarantees it. Under humanitarian law, the rights of prisoners get highlighted in respect of prison rules, sentences of imprisonment for life and remission powers vested with the Executive.

In view of the sad situation of convicts, especially in States such as Uttar Pradesh and Orissa, the Supreme Court has been working towards ensuring that a justice prevails in the society. On September 6, the Supreme Court had emphasized that the Uttar Pradesh State must implement its policy for the premature release of life-sentenced prisoners in an objective and transparent manner. The Court ruled that the State must diligently evaluate the cases of eligible inmates for remission after noting that numerous offenders languish in jail while serving lengthy sentences because they lack access to legal resources to seek for remission. The decision followed a petition by more than 500 prisoners who objected to Uttar Pradesh’s new policy on premature release, which disqualified them despite serving 16 years of their sentence. These convicts were eligible for release as of August 1, 2018, but Uttar Pradesh took a stricter position and limited the eligibility of premature release to those who reached the age of 60 on July 28, 2021.However, the condition was later omitted by the state.

In the said petition, the bench comprising Justices DY Chandrachud and HimaKohli made these significant observations, and said that, “The implementation of the policy for premature release has to be carried out in an objective and transparent manner as otherwise it would impinge on the constitutional guarantees under Articles 14 and 21. Many of these life convicts who have suffered long years of incarceration have few or no resources. Lack of literacy, education and social support structures impede their right to access legal remedies. Once the state has formulated its policy defining the terms for premature release, due consideration in terms of the policy must be given to all eligible convicts. The constitutional guarantees against arbitrary treatment and of the right to secure life and personal liberty must not be foreclosed by an unfair process of considering applications for premature release in terms of the policy.”

The judgment of the SC may be read here:

Download PDF

These recent orders issued by Supreme Court all point towards their efforts of reforming the laws related to grant of bail and premature release to convicts who have serves jail terms between the years of 10 to 14 years. The Supreme Court had shown concern over the number of number of criminal appeals pending against the High Courts of India as well as the number of years a convicts serves in jail while their appeals stay pending in the Court.

The first policy in connection with the premature release of prisoners was circulated in 1987. After that came the policies of 1988, 1991, 2000 and 2002 which contemplated that the case of premature release would be considered on individual basis to be reviewed by a State Committee and thereafter shall be put before the Governor.

According to statistics provided to the Supreme Court, the Allahabad High Court and its Lucknow benches had approximately 1,83,000 Criminal Appeals pending as of August 2021,with an average disposition rate of 18%. The Patna high court indicated that more than 4,000 convicts remain in custody whose appeals are pending before the high court. Of these, 363 have completed 14 years in custody. The Orissa high court, too, presented figures suggesting that in the state, 225 convicts have been in custody for more than 10 years and 51 have remained in jail for over 14 years. In Uttar Pradesh, the amicus in the Sonadhar case pointed out, there are 2,853 appeals pending in the high court where 3,234 convicts have been in custody for more than 10 years. Of these, 385 convicts have spent over 14 years and are eligible for remission. The Amicus, after analysing the data from these High Courts had said that there are 5740 cases appeals by accused in custody, including Division Bench appeals and Single Bench appeals. In Bihar, there are about 268 convicts – whose cases are being considered for a premature release.

Prior to this, in February, 2022, the Supreme Court in a significant order, in the case of Saudan Singh v/s State of Uttar Pradesh, had said the Allahabad High Court could consider granting bail to the convicts who are not repeat offenders and have served 14 years or more as jail terms as sentence as this would ensure massive decline in pendency.The Supreme Court also said the convicts who have served jail terms between 10 to 14 years can be considered for bail during the pendency of their appeals against conviction in the High Court. A bench comprising Justices S K Kaul and M MSundresh was “exasperated” over the non-formulation of common “template” by the Allahabad High Court and the Uttar Pradesh government to deal with the issue of bail to convicts who have served out considerable period of sentence and no likelihood of hearing of their appeals in near future. This bench has been repeatedly expressing displeasure at the inordinate delays in deciding criminal appeals by the Allahabad High Court. In dozens of cases, the bench granted bail to convicts pending consideration of their appeal due to very bleak chances of their appeals being heard in near future.

This Order may be read here:

Download PDF

The bench then went on to grant bail in 21 such cases filed against the denial of bail to convicts by the high court.While giving the order, the Supreme Court observed that it is only the underprivileged who have to languish in prisons as those belonging to the high society escape the country. The bench said that “people who remain in custody come from a weaker strata of society. Our experience is that all underprivileged persons remain in jail. In one case of a high society criminal, by the time he was convicted, he had skipped the country.”

Referring to the worrisome state of appeals present in the Allahabad High Court, the high court enquired if there is a reformative process possible. Using the example of the Madras High Court which hearing the appeals of 2020, the Bench asked the Allahabad High Court to improve and think out of the box as they were appeals still pending from the 1980s. They bench had further said, “The fact remains. If a convict has served out 14 or more than 14 years of the sentence, then his case is likely to be considered for remission. The court should either direct (the state authorities) that his application for remission be considered within three months or enlarge him on bail. In these cases bail can be granted in one go. Second category of persons could be one where the persons have served out more than 10 years sentence and In these cases, bail can be granted at one go unless there are any accentuated circumstances. These two parameters can be followed.”

The bench asked the counsel for the high court to convey its views and to this, the lawyer said though he was appearing on the administrative side, he would pass on the directions of this court.The bench said that it took 15 to 20 minutes in deciding the 20 odd bail applications and the same can be done in the high court by preparing the list of cases where the convicts have served either 14 or more or between 10 to 14 years of jail term.

On facilitating the early release of prisoners languishing in prisons across the country, the court, in a separate matter, has roped in the National Legal Services Authority to enable timely decisions on remission pleas along with provision for such prisoners to file appeals through legal aid volunteers.

Previous to this, on October 5, 2021, in the same case, the Supreme Court suggested that the Allahabad High Court should consider granting bail to convicts who have served half of their sentence. When considering the issue of long pending criminal appeals in the Allahabad High Court, the Supreme Court noted that bail is the rule where the convict has already served eight years of actual sentence. In cases other than life sentences, a broad parameter of 50% of sentence served is applicable for the grant of bail to convicts in appeals.

The Bench of Justices Sanjay Kishan Kaul and MM Sundersh has sought a policy strategy in this regard and had given the High Court four weeks to do so. The bench had further said, “The fact of the matter is that if an appeal is pending at the High Court stage and the convict has already undergone eight years of actual sentence, exceptions apart, in most cases bail would be the rule. Despite this, the cases are not coming up for consideration. We are not clear as to how much time does it take for a bail application to be listed in such a case. There may be convicts who may not be able to have the requisite access to legal advice for moving the bail application.” It emphasised that convicts in custody are also from cases other than life sentences, and it further stated: “We may note that there may be even convicts in custody in cases other than life sentence cases and in those cases again the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail.” The bench had noted, among other things, that if an appeal comes up for hearing and the appellant seeks adjournment rather than arguing the appeal, which may not be a case for bail because the High Court is willing to consider the merits of the appeal.