JUDGMENT Chettur Sankaran Nair, J. 1. Petitioners complain of grant of parole to convict prisoners, guided solely by whims and humour of the Government. They say that the Authorities turn the Nelson's eye to genuine cases, and grant parole to others, on the basis of letters issued by personal staff of Ministers, Members of Legislature and patty men. Those paroled, often do not come back to serve the remaining sentences, according to petitioners. 2. It is alleged (Crl. M. C. 1565/92) that one K. A. Devaseykutty, Koyickara House, Kanjoor, convicted of the offence of cheating has been overstaying and enjoying parole, engaging himself in contract work. in the meanwhile. Newspaper reports are also pressed into service to contend that such instances have been common, 3. The State ambits that atleast Devaseykutty and Kasim (mentioned in Crl. M. P. 190/93) have been at large, overstaying parole. Files produced, reveal that parole had been granted at the instance of Private Secretaries to Ministers, Legislators etc. (For example, Convict No. 8436 Joy, C No. 4636 Suku alias Sukumaran). They reveal further that grant of parole is not bated on any discernible or predictable principle. I do not wish to go into the facts in detail. 4. Petitioner in OP 3489/93 seeks a declaration that R.452 (BB) of the Kerala Prison R.1958 is unconstitutional, arbitrary and violative of Art.14 of the Constitution of India. The rule reads: "Notwithstanding anything contained in Chap.26 of these Rules Government may, in deserting cases, great leave to any prisoner, exempting him from all or any of the provisions relating to the granting of leave". (emphasis supplied) According to petitioner, the rule confers arbitrary, unguided and uncanalised power on the Government, to act on whims and in a manner abhorrent to rule of law. 5. Counsel for petitioners relied on the decision in 'In Re art 143' (AIR 1951 SC 333) to contend that legislature cannot part with its essential legislative function of declaring policy, leaving the delegate free to act according to its will. 5. Counsel for petitioners relied on the decision in 'In Re art 143' (AIR 1951 SC 333) to contend that legislature cannot part with its essential legislative function of declaring policy, leaving the delegate free to act according to its will. The decisions in State of West Bengal v. Anwar Ali Sarkar ( AIR 1952 SC 75 ) Hamdard Dawakhana v. Union of India ( AIR 1960 SC 554 ), Vasan Lal v. State of Bombay ( AIR 1961 SC 4 ), State of M.P. v. Baladeo Prasad ( AIR 1961 SC 293 ), Shama Rao v. Union Territory of Pondichery ( AIR 1967 SC 1480 ), State of Punjab v. Khanchand ( AIR 1974 SC 543 ). State of Maharashtra v. Mrs. Kamal Sukumar Durgule ( AIR 1985 SC 119 ) and A. N. Parasuraman v. State of Tamil Nadu ( AIR 1990 SC 40 ) were also relied on, to support this contention. 6. In State of West Bengal v. Anwar All Sarkar ( AIR 1952 SC 75 ), the Court struck down unlimited discretion granted to the State Government without guidelines, to select cases to be tried by the Special Tribunal. in Vasan Lal ( AIR 1961 SC 4 ), delegated legislation was struck down, as legislative policy was not indicated. Legislation did not enumerate the grounds or conditions upon which the power was to be exercised. Again in Shama Rao ( AIR 1967 SC 1480 ), the Court held that abdication or effacement of legislative function, conferring uncanalised powers without guidelines to the executive, was unconstitutional. Legislative policy cannot be delegated. 7. Legislature cannot visualise every situation that may arise, and indicate how to deal with it. It can only declare) legislative policy and objectives, leaving it to subordinate legislation, to carry out purposes of the Act. Delegated legislation is a well known device. But, basic legislative functions cannot be surrendered to the delegatee. 8. Subordinate or delegated legislation is bounded by the extent of delegation: "If a power exists by Statute, character or custom to make bye laws, that power must be exercised strictly in accordance with the provisions of the Statute." (Craies on Statute Law - 7th Edition Page 324.) The same view is expressed by H. W. R. Wade: "Rules and regulations not duly made under the Act of Parliament, are legally ineffective ...... Acts of Parliament have sovereign force, but legislation made under the delegated power Can be Valid only if it conforms exactly to the power granted." (emphasis supplied) Delegated power is not plea nary in character. If it transgresses the parameters of delegation, the exercise will be ultra vires, unlike statute Law, role making power is bounded by the terms of delegation (See Bimal Chandra Banerjee v. State of M.P., AIR 1971 SC 517 , Bar Council of Delhi v. Surjeet Singh ( AIR 1980 SC 1612 ) and Laker Airways v. Dept, of Trade (1977) Q. B. 643)). 9. The Statute in question does not indicate legislative policy, nor lay down guidelines for grant of parole. For that matter, even the rule does not indicate cases in which parole is to be granted, or considerations upon which, parole is to be granted, 10. The State Prosecutor admits that neither the Act nor Rules, lays down the principles or considerations upon which power is to be exercised. According to him this matters not because, the power is vested in a high authority (Home Secretary) who can be trusted to discharge his responsibilities properly. Pannalal Binjraj v. Union of India ( AIR 1957 SC 397 ) and Collector of Customs v. N. Sampathu Chetty ( AIR 1962 SC 316 ) were relied on by the State Prosecutor, to lace his contention with legal frills. Those cases offer no parallel, to the cases on hand. In the cases cited, the Income Tax Act and Customs Act laid down the legislative mandate, and left a measure of discretion to the Commissioner of Income Tax and Collector of Customs, within the frame work of the Statutes. The Court held that an amount of discretion was inevitable, that such discretion could be left with highly placed officials, and that potential of abuse does not stamp the rule with vice on its forehead. 11. As already noticed, neither the Prisons Act, nor even the Rules prescribe any condition or guideline for grant of paroles. While Chap.26 of the Rules makes provision for ordinary leave and emergency leave (parole), a third category outside the Chapter is envisioned by R.452(BB). All that is needed to invoke this rule, is the opinion of the Government that a particular case is a 'deserving' case. Nothing could be more subjective or arbitrary, than such a prescription. While Chap.26 of the Rules makes provision for ordinary leave and emergency leave (parole), a third category outside the Chapter is envisioned by R.452(BB). All that is needed to invoke this rule, is the opinion of the Government that a particular case is a 'deserving' case. Nothing could be more subjective or arbitrary, than such a prescription. Many concepts are elastic, but few could be more elastic, Opinions may differ and differ vastly too, as to what is 'deserving'. The vice of arbitrariness taints the rule. 12. Parole is a salutary rule, recognised in all systems of Criminal Jurisprudence, But, arbitrariness and abuse can turn good into evil in Celin Joseph (1990 KLN 93), the Government was cautioned against arbitrary exercise of power. Needless, the rule was put to arbitrary uses, as revealed from the files. 13. Arbitrariness is the antithesis of the rule of law. Government of law cannot be substituted with government of man, however highly placed they be. Discretion cannot be unguided, lost discretion become tyranny Long back, in the case of John Wilkes ((1770) 4 Burr 2528), Lord Mansfied stated: "Discretion means sound discretion guided by law. It must be governed by rule not by humour : it must not be arbitrary, vague and fanciful." Generation of Judges, shared the same thought. The voice with which they spoke, still reverberate through the corridors of time In U. S. v. Hunderlich ((342) U. S.98), Douglas J. Said : "Law has reached its finest moments when it has freed man, from the Unlimited discretion of some ruler, where discretion is absolute, man has always suffered." (emphasis supplied) The Apex Court reiterated this basic article of faith, elegantly in Jaisinghani v. Union of India ( AIR 1967 SC 1427 ). The Constitution Bench observed : "The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system it based. In a system governed by rule of law, discretion when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view, means that decision should be made by the application of known principles and rule ............................................. such decisions should be predictable". (emphasis supplied) 14. R.452(BB) embodies no guidelines, nor principle, nor philosophy. The rule leaves open the door for predilections, passions and caprice. The rule of law from this point of view, means that decision should be made by the application of known principles and rule ............................................. such decisions should be predictable". (emphasis supplied) 14. R.452(BB) embodies no guidelines, nor principle, nor philosophy. The rule leaves open the door for predilections, passions and caprice. The Government may decide which is a deserving case, by humour nothing could be more arbitrary - less predictable. Uncanalised and unguided discretion without enunciation of legislative policy, or principles upon which discretion is to be exercised' taints the rule with the vice of arbitrariness. Government can pick and choose, with an evil eye and an unequal end. The files, and the instances mentioned by petitioners demonstrate arbitrariness in action and free play of unguided discretion If follows that R.452(BB) of the Kerala Prison Rules has to be struck down as arbitrary, ultra vires of the Statute, and violative of Art.14 of the Constitution of India. It is accordingly struck down. This will act stand in the way of appropriate provisions being made in accordance with law. The writ petition and the Crl. M. C. are allowed. No costs.