New Delhi: The Supreme Court on Thursday, July 16, directed all states and Union territories to formulate and notify a policy within three months for early or premature release of prisoners who are of advanced age or are terminally ill.
A bench of Justices Vikram Nath and Sandeep Mehta said the policy should clearly define the eligibility criteria and procedural framework for consideration of release and in particular, it should expressly provide a clear and uniform definition of “terminal illness”.
The bench delivered its verdict on a plea by the National Legal Services Authority raising grave and systemic concerns regarding continued incarceration of convicted prisoners who are of advanced age (above 70 years) or are terminally ill.
It also asked the Centre to provide all necessary support to states and UTs to facilitate effective compliance with its directions.
“All states and Union Territories shall, within a period of three months from the date of this judgment, formulate and notify a comprehensive policy for early or premature release of prisoners who are of advanced age and/or are terminally ill,” it said.
It noted that under the doctrine of separation of powers, court cannot assume the role of a legislature or embark upon law-making in areas expressly reserved for the elected branches of government.
“Judicial directions cannot transgress into the realm of legislative policy or supplant statutory frameworks, particularly in matters where the Constitution vests primary competence in the States,” the bench said.
It said role of the apex court is not to legislate, but to interpret, enforce and give meaningful effect to constitutional guarantees, while remaining mindful of the limits of institutional authority and judicial restraint.
Constitutional restraint not to be equated with abdication
“However, constitutional restraint cannot be equated with constitutional abdication. Where legislative or executive inaction results in persistent or systemic violations of fundamental rights, this court cannot remain a passive spectator,” the bench said.
“In such circumstances, constitutional adjudication cannot retreat into silence, and this court is duty-bound to issue appropriate directions to ensure that existing constitutional and statutory frameworks are effectively implemented and that the guarantees under Article 21 of the Constitution of India do not remain merely formal or illusory,” it said.
The bench noted that punishment must remain anchored in proportionality, humanity and the possibility of reform, and that incarceration cannot be permitted to degenerate into institutional neglect incompatible with the values of a constitutional democracy.
Exercising its powers, including under Article 142 of the Constitution, the bench said the policy be framed in consultation with the respective State Legal Services Authorities so as to ensure institutional coordination and effective identification of eligible prisoners.
Definition of ‘terminal illness’
Regarding uniform definition of “terminal illness”, the bench said for this purpose, the states and UTs may adopt, with such modifications as deemed appropriate, the definition contained in UNODC Handbook on Prisoners with Special Needs (2009).
It noted that definition in the handbook describes terminal illness as “a condition where there is no reasonable medical possibility that the patient’s condition will not continue to degenerate and result in death”.
The bench said the policy should mandate constitution of independent medical boards at the divisional and state levels for objective medical assessment and certification of terminal illness or advanced medical vulnerability.
It said the policy should prescribe a time-bound and accessible procedure for submission, examination and disposal of applications for early or compassionate release.
Procedural delays should not result in prisoners spending final months in jail
“Procedural delays which result in prisoners spending their final months or years under incarceration shall be avoided, and all decisions shall be reasoned and subject to judicial review,” it said.
The bench observed the manner in which a constitutional democracy treats those who find themselves in positions of heightened vulnerability within its institutional framework is often the clearest reflection of its commitment to the rule of law and human dignity.
It said prisons are not spaces where constitutional values are suspended.
“The guarantees of dignity, fairness and humane treatment continue to operate with full force even behind prison walls, where the power of the State is exercised in its most intrusive form and the vulnerability of individuals is at its highest,” the bench said.
It noted that according to the Prison Statistics India Report, 2022, published by the National Crime Records Bureau, as on December 31, 2022, there were a total of 1,33,415 convicted prisoners in India.
The bench noted that out of them, 27,690 convicts, constituting approximately 20.8 per cent, were aged 50 years and above.
It asked the Centre to provide all necessary support to states and UTs to facilitate effective compliance with its directions.
Compliance affidavits to be filed within six months
The bench also asked the Centre, all states and UTs to file compliance affidavits before it within six months.
It said the compliance affidavits should also indicate the status of formulation and implementation of policy, including data regarding the number of prisoners identified, released, and those presently under consideration.
“The directions issued hereinabove are intended to give meaningful effect to the constitutional guarantee of life with dignity and to ensure that the criminal justice system does not inflict needless suffering upon those whose vulnerability is manifest and irreversible,” the bench said, while posting the matter for January 17.
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