G.P. Singh, C.J.
1. This petition under Article 226 of the Constitution is by one Mohan Singh who is a convict and who is undergoing sentence of imprisonment for life. The petitioner was lodged in the Central Jail, Jabalpur, at the time when he sent this petition. On 28th July 1980 when he was brought before us from jail, we were informed that he was transferred to Central Jail, Rewa, after the filing of the present petition. The petitioner's grievance is that on 25th January 1978 the Government issued an order under Section 432(1) of the Code of Criminal Procedure, 1973, granting certain remissions in which special remissions were allowed to prisoners belonging to the Scheduled Castes and the Scheduled Tribes which were not allowed to other prisoners. The petitioner submits that denial of special remissions to prisoners not belonging to the Scheduled Castes and the Scheduled Tribes violates their fundamental fights under Articles 14 and 15(1) of the Constitution and that the State should be directed to allow special remissions to the petitioner also.
2. The impugned order in so far as relevant, reads as follows;
No. 4531-47/(e)/27/78/XXIB. In exercise of powers conferred under Sub-section (1) of Section 432 of the Code of Criminal Procedure, 1973, the Government of Madhya Pradesh are pleased to grant following remissions to the prisoners sentenced by the Courts in Madhya Pradesh who have been undergoing sentence of imprisonment on ,26th January 197B in the jails of the State or in the jails of other States:
(1) General Remission
(a) to the extent of one year in the sentence of those prisoners who have undergone sentence of five years inclusive of remissions;
(b) to the extent of six months in the sentence of those prisoners who have undergone sentence of less than five years and more than two years inclusive of remissions;
(c) to the extent of three months in the sentence of those prisoners who have undergone sentence of less than two years and more than six months inclusive of remissions;
(d) to the extent of fifteen days in the sentence of those prisoners who have undergone sentence of less than six months inclusive of remissions; and
(e) all those prisoners who have undergone sentence of sixteen years or more inclusive of remissions, shall be released.
(2) Special Remission:
(a) In addition to the aforesaid remission, all female prisoners and those prisoners as belonging to the Scheduled Castes and Scheduled Tribes notified under Articles 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 (e) of this order but shall be dealt with only in accordance with paragraph 2 (b) thereof.)
3. The petitioner avers in the petition that the convicts undergoing sentence in jail are treated without any distinction of caste or religion. They are identified not by their caste or religion but by name and number. The special remissions granted to the prisoners belonging to the Scheduled Castes and the Scheduled Tribes and denial of the same to the petitioner violates his right to equality. The return filed by the State Government states that the prisoners belonging to the Scheduled Castes and the Scheduled Tribes constitute one class and special reemissions can be given to them as a class. It further states that the Government has a discretion to give special remission to convicts under Rule 714 of the Jail Manual which reads as follows:
714. State remission is awarded by Government on occasion of public rejoicing. It is granted unconditionally under Section 401(1), Criminal Procedure Code, and cannot under any circumstances be forfeited.
4. A reading of the order will go to show that the prisoners belonging to the Scheduled Castes and the Scheduled Tribes were granted double the remission which was allowed to other prisoners. Further, the prisoners belonging to the Scheduled Castes and the Scheduled Tribes who had undergone sentence of 14 years or more inclusive of remission on the date of the order, were to be released on 26th January 1978; whereas, in case of other prisoners they were to be released if they had undergone sentence of 16 years or more inclusive of remission. The special remissions were also allowed to female prisoners but as no grievance has been made by the petitioner on that ground we will omit it from our consideration. The order granting the remission was obviously issued on the occas-sion of the Republic Day of 1978 which is a day of public rejoicing.
5. On the face of it the order granting remissions discriminates prisoners not belonging to the Scheduled Castes and the Scheduled Tribes on the basis only of race and caste and violates Clause (1) of Article 15 of the Constitution which provides that 'the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.' The only question is whether the order can be said to be protected by Clause (4) of Article 15 which, in so far as relevant, provides that 'nothing in this article shall prevent the State from making any special provision for the advancement of any socially and educationally backward class of citizens or for the Scheduled Castes and the Scheduled Tribes.' Clause (4) has to be construed in the light of Article 46 which is one of the articles in the Chapter dealing with Directive principles of State policy. This article provides that 'the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.' It has also to be remembered that Clause (4) of Article 15 is an exception to the fundamental right granted to all citizens under Clause (1) and that it cannot be construed to authorise making of a provision which completely defeats that fundamental right. Clause (4) attempts to balance as against the right of equality of citizens the special necessity of the weaker sections of the people by allowing a provision to be made for their advancement. To justify protection under Clause (4), the special provision must be a reasonable provision for the advancement of the backward classes and the Scheduled Castes or the Scheduled Tribes. The word 'advancement' as used in Article 15(4) has to be liberally construed in the light of Article 46 and will include promotion of educational, economic and social interests and protection from social injustice and all forms of exploitation. But every advantage allowed to the members of the Scheduled Castes and the Scheduled Tribes cannot be said to be for their advancement contemplated by Clause (4). The point may be explained by an extreme example that grant of a general exemption from prosecution and punishment to criminals of the Scheduled Castes and the Scheduled Tribes will be of great advantage to the criminals but it will not be a measure for the advancement of the Scheduled Castes and the Scheduled Tribes. In State of Rajasthan v. Pratap Singh : 1SCR222 exemption granted to Harijan inhabitants from levy of cost of additional police force under Section 15(5) of the Police Act, 1861, was struck down as violative of Article 15. The special advantage which can be upheld under Clause (4) must bear a reasonable relation with the advancement of interests of the members of the Scheduled Castes and the Scheduled Tribes as envisioned by Article 46. It is in this light that it has to be seen whether the special remissions granted to prisoners belonging to the Scheduled Castes and the Scheduled Tribes by the impugned order can be sustained. Now it is difficult to understand what advancement, educational, economic or social or what protection from social injustice and exploitation can be achieved by granting special remissions to the prisoners belonging to the Scheduled Castes and the Scheduled Tribes. The conviction for violating the penal laws and the legal obligation to undergo the sentence awarded cannot be termed as social injustice or exploitation of the prisoners. It is a social necessity to protect other law abiding members of the society including the Scheduled Castes and the Scheduled Tribes. Grant of special remissions merely on the ground of caste or race of the prisoners cannot be termed as conducive to the advancement of the interests of the members of that caste or race although it is certainly advantageous to the prisoners themselves. It cannot also be said that the prisoners belonging to the Scheduled Castes and the Scheduled Tribes are relatively better behaved or that corrective effect of the sentence is achieved in their case earlier as compared to others. Fitness of a prisoner for remission or release cannot be judged on the basis of caste or race alone. Even if the grant of remission on the Republic Day was to enable the prisoners to share the feeling of public rejoicing with their free countrymen, yet there was hardly any reason to make any distinction on the basis of caste or race. The special remission granted to the prisoners of the Scheduled Castes and the Scheduled Tribes thus bears no reasonable nexus with the advancement of the Scheduled Castes and the Scheduled Tribes and does not qualify for protection under Clause (4) of Article 15.
6. The learned Deputy Advocate-General submitted that no prisoner has a right to remission under Section 432 of the Code of Criminal Procedure and that a petition under Article 226 of the Constitution is not maintainable as the power to grant remission is discretionary. The fallacy in this argument is that the petitioner is not invoking any right of remission under Section 432 but his fundamental rights under Articles 14 and 15(1). It is well settled that convicts are not wholly denuded of their fundamental rights and there is no iron curtain between prisoners and the Constitution. (See Sunil Batra v. Delhi Administration : 1978CriLJ1741 . (1) If the State decides to grant certain remission to prisoners of a particular caste or race and if the State denies the same to other prisoners on the basis of their caste and race only, the prisoners who are so denied the benefit are entitled to invoke the fundamental right under Article 15. The power to grant remission under Section 432 of the Code is no doubt discretionary but it is subject to the constitutional rights of prisoners and cannot be used so as to discriminate prisoners on the basis of caste and race only. The Deputy Advocate-General relied upon the cases of Gopal Vinayak Godse v. State of Maharashtra : 1961CriLJ736a and State of M.P. v. Ratan Singh : 1976CriLJ1192 for the submission that power to grant remission is discretionary. These cases have no application here as they do not deal with the effect of Articles 14 and 15 on the exercise of the power to grant remission. It was also submitted by the learned Deputy Advocate-General that the prisoners of the Scheduled Castes and the Scheduled Tribes who were granted special remissions have been released and striking down of the special remissions allowed to them would be wholly unjust as the prisoners released will have to be brought back in jail and that will not bring any particular benefit to the petitioner. The answer to this argument is simple. The petitioner does not want that the special remissions which have been granted to the prisoners of the Scheduled Castes and the Scheduled Tribes should be withdrawn. The petitioner seeks to enforce his right to equality by saying to the authorities; 'You have granted special remissions to the prisoners of the Scheduled Castes and the 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'. In our opinion, the petitioner's stand is fully justified.
7. The petitioner has also complained about his transfer from Central Jail, Jabalpur to Central Jail, Rewa. He passed B.A. (final) in II division when he was in Jabalpur Jail. He wants to continue his studies and pass M.A. from Jabalpur University. The authorities may consider his case for retransfer to Jabalpur in case he is not released, as a result of the decision of this petition.
8. Before parting with the case, we must express our thanks to Shri Gulab Gupta, Advocate, who on our request, appeared for the petitioner.
9. The petition is allowed. The State is directed to give the benefit of special remissions contained in paragraphs 2(a) and 2(b) of the impugned order to the petitioner and to release him in case he was qualified for release on the footing that the remission mentioned therein applied to him.