Pre-mature release of convicts by govt orders won't lie under habeas corpus writ, say SC

The Supreme Court ruled on Thursday that habeas corpus writ can't be used for securing pre-mature release of a convict under government orders (GO) or rules. A petition under the writ of habeas corpus is filed to ensure that a person under arrest is brought before a court which would determine whether his or her detention is legal.

Making clear that habeas corpus writ can only be issued when the detention or confinement of a person is without the authority of law, the apex court said that its scope has been expanded over a period of time. The top court's ruling came while dealing with petitions arising out of the Madras High Court verdict ordering release of several convicts under a scheme framed by the Tamil Nadu government for considering the cases of pre-mature release of convicted prisoners on the occasion of birth centenary of former chief minister M G Ramachandran.

A bench of Justices S A Nazeer and Deepak Gupta said it is a settled principle of law that a writ of habeas corpus is available as a remedy in cases where a person is deprived of his or her personal liberty. "At the same time, the law is well established that 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 bench said in its verdict.

"Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the court, before issuing any writ of habeas corpus, must come to the conclusion that the detenu is under detention without any authority of law," it said. The bench said there can be no dispute with the proposition that anybody who is behind the bars and is either ill-treated or deprived of his liberties, he or she may approach the court for a writ of habeas corpus.

"A writ petition by a prisoner is maintainable if his fundamental rights are violated," it said. The bench noted in its order that convicts, which were ordered to be released by the high court, were behind the bars and serving life term pursuant to their conviction and sentence which was confirmed by the top court also.

"In these cases, the detenus have been sentenced to imprisonment for life and as such their detention cannot be said to be illegal. It is not for the writ court to decide whether a prisoner is entitled to parole or remission and these matters lie squarely in the domain of the Government," it said, adding, "The Rules cannot override the Constitution." Dealing with the issue whether high court can direct the release of these detenus under the GO, the bench said, "We do not think so. In all these cases, the representations made by the detenus had not been decided. In our view, the proper course for the court was to direct that the representations of the detenus be decided within a short period."

The bench said it would be reasonable to grant two-­three months to the authorities to deal with the representation made by the convicts in accordance with the GO. "We are clearly of the view that the court itself cannot examine the eligibility of the detenu to be granted release under the Scheme at this stage," the bench said while setting aside the high court orders.

It said that authorities must pass a reasoned order in case they refuse to grant benefit under the scheme to any convict. The bench, which was dealing with cases of five convicts, ordered release of four of them while considering that they have completed several educational courses during the period of incarceration.

In one of the cases, the bench noted that the person has been convicted in another case and asked the authority to consider his representation under the scheme within six weeks. "In case the state rejects the plea of the detenu then a reasoned order has to be passed and, in that eventuality, the detenu shall be at liberty to challenge the order before the high court," the court said.

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