O R D E R
These appeals by special leave impugn the judgments and orders of Division Benches of the High Court of Madhya Pradesh. The High Court allowed several writ petitions and directed the respondent State to give to the writ petitioners the benefit of a special remission which the State had restricted to prisoners belonging to the Scheduled Castes and Scheduled Tribes and to female prisoners.
The remission was granted on the occasion of Republic Day, 1978, under the provisions of Section 432(1) of the Code of Criminal Procedure. In clause (1) certain general remissions were granted, with which we are not concerned. Clause (ii) dealt with the special remission and read thus:
"Special Remissions:-
In addition to the aforesaid remission
all female prisoners and those prisoners
as belonging to the scheduled castes and
scheduled tribes notified under Article
341 and 342 of Constitution. shall be
given by way of Special Remission,
further remission equal to general
remission granted to them under
paragraph 1 (a), (b), (c) and (d) of
this order.
(b) The female prisoners and the
prisoners belonging to Scheduled Castes
and Scheduled Tribes who have undergone
sentences of fourteen years or more
inclusive of remissions, shall be
released.
(Note :- Such prisoners shall not be
dealt with in accordance with paragraph
1(c) of this order but shall be dealt
with only in accordance with paragraph
2(b) thereof.)"
The Principal judgment is in the first appeal. It was followed in the other appeals.
The writ petitioners contended that the special remission granted to prisoners belonging to the Scheduled Castes and Scheduled Tribes and denied to other prisoners, such as the writ petitioner, violated their right to equality. He prayed that the State should be directed to allow the special remission to him. The contention of the State in its return was that prisoners belonging to the Scheduled Castes and Scheduled Tribes constituted a class and the special remission could validly be given to them. The High Court came to the conclusion that the benefit of Article 15(4), which the State relied upon, was unavailable as a defence inasmuch as the provision for special remission could not be said to have been made for the advancement of the Scheduled Castes and Scheduled Tribes. The grant of special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes and denial of the same to other prisoners amounted to discrimination. The High Court upheld the argument of the writ petitioner thus:
"You have granted special remission to
the prisoners of the Scheduled Castes
and Scheduled Tribes on the basis of
caste and race only which is not covered
by Article 15(4), therefore, treat me
and other prisoners equally and give us
the same remissions which have been
allowed to the prisoners of the
Scheduled Castes and the Scheduled
Tribes," The State was directed to give to the writ petitioner the benefit of the special remission.
We are in agreement with the view of the High Court that there was no justification in law for giving special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes. In so far as these prisoners had broken the law and were being punished for doing so, they stood on the same footing as all other prisoners. The invocation of Article 15(4) was wholly unjustified; the grant of remission to convicted prisoners belonging to the Scheduled Castes and Scheduled Tribes can hardly be said to be a measure for the "advancement" of the Scheduled Castes and Scheduled Tribes.
Here we part company with the High Court. Having come to the conclusion that grant of special remission to Scheduled Caste and Scheduled Tribe prisoners was unlawful, the proper course to adopt should have been to strike it down. It was beyond the High Court’s power to expand the reach of the remission so as to give the benefit of it to the writ petitioner, who did not belong to the Scheduled Castes or Scheduled Tribes. If the power was improperly exercised, The High Court could not, in effect, grant a general remission where the State had intended it to be restricted.
This Court had made it clear that in the event that special leave was granted, the respondents would not be asked to go back to jail. We think that those who have obtained the benefit of the High Court’s order must be permitted to retain it and they cannot now be required to serve out the terms in respect of which they got such benefit.
The appeals are allowed. The judgments and orders under appeal are set aside but the respondents shall not be required to forgo the benefits they have obtained by reason thereof. There shall be no order as to costs.