HC rejects 1993 blast convict`s plea for open prison

The Bombay High Court has rejected a petition by a 1993 bomb blast convict seeking relief that he be sent to an open prison.

Mumbai: The Bombay High Court has rejected a petition by a 1993 bomb blast convict, currently serving a life term in Aurangabad jail, seeking relief that he be sent to an open prison.

Sardar Shahwali Khan (55) challenged the decision of prison authorities refusing to select him for committal to open prison. He challenged the constitutional validity of section 4(ii)(n) of Maharashtra Open Prisons Rules 1971.

Justice U D Salvi and Justice A H Joshi at the Aurangabad bench recently rejected the petitioner`s argument that unfettered, unguided and unbridled powers were vested in the authority by virtue of Rule 4 (ii)(n).

The bench observed "one cannot always foresee every situation which may arise when executive functions. Law makers usually give a frame of law leaving ample power to make rules by exercise of delegated legislation and further room for executive to function and for discretion to deal with day-to-day business. In these premises, Rule 4(ii)(n) carves out room for executive powers and discretion," they observed.

"It is also seen that the Committee is always entitled to invoke Rule 4(iii) and recommend case of a prisoner who is otherwise found ineligible, for being considered for Open Prison and such cases can be considered by Inspector General of Prisons for special reasons. However, such recommendation would always be on account of personal good behaviour and/or merit for such eligibility and any other special circumstance," the judges remarked.

"To our mind, may be because of clause (iii) that one amongst the prisoners, who is a convict in TADA offence as is indicated by petitioner, may have been selected and sent to Open Prison. Therefore, a residuary clause in the nature of Rule 4(ii)(n) has to be considered necessary, and a detailed and further scholarly debate is not warranted in this case".

The judges concluded, "In the background of the foregoing discussion, the challenge to the constitutional validity on the ground that unfettered, unguided and unbridled powers are vested in the authority by virtue of Rule 4(ii)(n), has to fail".

Sardar was handed over a life sentence in June 2007 by a TADA court for helping Tiger Memon in executing the serial bomb blasts that killed 257 people on March 12, 1993.

In the petition, he challenged Rule 4 (ii)(n) which reads... "any other prisoner or category of prisoners whom the Inspector General of Prison considers unfit for being sent to open prison."

He argued that prisoners undergoing life term for any offence under any law, form one class. By segregating TADA prisoners from others it would constitute class discrimination. Rule 4(ii)(n) permits further classification.

Petitioner`s Counsel A N Patale argued that the rule 4(ii)(n) confers upon Inspector General of Police, a channelized, unguided and unbridled power. Hence, this Rule is violative of Articles 14 and 21 of the Constitution and deserves to be struck down as it is ultra vires.

Additional Public Prosecutor S K Kadam submitted that Rule 4 will have to be read in entirety. Rule 4(a) to (l) contains a list which is "illustrative in nature" and not exhaustive. It is not a restrictive list. Rule 4(ii)(n) should not be read in isolation, as it is a residuary clause.

Executive has always to face factual and actual unforeseen situations. Vesting of discretionary power as guided by earlier clauses is a compelling necessity in day-to-day governance, he argued.

Kadam contended that the classes of prisoners, notwithstanding disability created in Rule 4(ii)(n) can still be considered by virtue of enabling provision contained in clause 4(iii). This clause provides for a ventilator and a safety valve provided by the Rules in order to ensure that the scrutiny of cases is done with objectivity at the stage of Inspector General of Prisons.

Considering the illustrative list incorporated in clause 4(ii) in Item Nos.(a) to (m), clause (n) is liable to be interpreted to include such categories of prisoners, who could be deemed unsuitable for selection, and the same would be governed by facts and sheerly on objective basis as illustrated from earlier clauses of Rule 4(ii). The case of each transfer shall have to be objectively decided based on record of the prisoner concerned.