This article on ‘Premature release of prisoners in India: All you need to know‘ was written by Risha Sharma, an intern at Legal Upanishad.
Deemed as the “manifestation of the prerogative power”, the acts of pardoning, remission, reprieve, and the like vest with the State and Central Government, subject to conditions prescribed by the law and by the courts of law. Any noticeable divergence from the said preconditions can be assailed on certain grounds as laid down by the Apex Court. These powers are discretionary and reflective of the performance of the official duty of the President and the Governors. Remission is essentially carried out to mitigate the punishment for a crime. In light of this, the present article aims to provide an overview of the policy concerning the premature release of prisoners in India.
The various theories associated with punishment for crime direct attention toward the main purposes for which a punishment is awarded: deterrence, retribution, reformation, reparation, and prevention, among others. As a part of the reformation process, prisoners are at times released prematurely, i.e., before their sentence is over, with no alteration in the form of punishment. This is referred to as remission. The term “remission system” was first mentioned in the Prisons Act, 1894 in reference to the rules governing the reduction of prisoners’ sentences. A number of laws and policies work in tandem to wholly cover the aspect of remission in India.
Provisions relating to remission
The Constitution accords the power of remission to the President at the Union level and the Governor at the State level, under what is commonly referred to as the “pardoning power” or “clemency power”.
Art 72: Under sub-clause (1) of this Article, the President has been vested with the power to absolutely absolve the offender of his crimes (grant pardon), defer or commute the sentence, reprieve, respite, or shorten the imprisonment term without altering its nature (remission) for the violation of a Central law. The President can grant pardons for death sentences and in case of punishments/terms laid down by the Court Martial.
Art 161: The scope of the governor’s powers with respect to pardoning is limited as compared to that of the president since a governor cannot pardon a death sentence or interfere in matters of Court Martial. However, in consonance with Art.72(3), the governor does possess the authority to suspend, remit or commute a death sentence. As far as violations of state laws are concerned, the governor does have the authority to pardon, remit, respite, reprieve a punishment, or commute the sentence of the offender.
Recently, the Apex Court explicated that the authority to commute the sentence for an offence committed under S.302 (punishment for murder) of the IPC (Indian Penal Code, 1860) vests with the State Govt (Governor).
The Code of Criminal Procedure provides for the grant of remissions under Sections 432-435 along with suspension and commutation of sentences. As per S.432, the appropriate government can suspend or remit sentences, provided that the opinion of the presiding judge should be obtained as per sub-clause (2). Furthermore, if the remission or suspension of the sentence is conditional but the appropriate government finds a non-fulfillment of the said donation, then it is empowered to cancel such remission or suspension.
S.433A imposes a restriction for the commutation of sentences under S.432 wherein the offender must serve a minimum imprisonment of 14 years in the following two conditions:
- for crimes that prescribe the death penalty as the punishment, or
- for those offenders whose sentences have been commuted from the death sentence to life imprisonment.
Section 435 lays down the circumstances under which the State govt is required to consult with the Central govt in respect of matters such as:
- where the investigation is carried out by the Delhi Special Police Establishment or by any other central authority,
- where a central government property was destroyed, disfigured, or misappropriated, or
- If the offense was committed by an individual carrying out his duties under the service of the central govt.
The Supreme Court has firmly established that the powers under Arts.72 and 161 cannot be confined by the provisions under the CrPC. However, these provisions are to be met by the Authority while exercising the clemency or pardoning powers. The clemency power as provided for under the Constitution, thus, remains unbridled by the statutory provisions.
In addition to the constitutional and statutory provisions, several judgments have further elucidated upon the premature release of prisoners and the extent and nature of the remission. The Supreme Court has through numerous judgments opined that the powers under Articles 72 and 161 very well fall within the purview of limited judicial review. The SC has enunciated the considerations governing the grant of remissions:
- Whether the crime committed is an individual act and does not affect society at large
- Possibility of recidivism
- Whether the offender still holds the ability to commit a crime
- Whether any benefits are associated with the confinement of the convict
- The socio-economic background of the offender’s family
Furthermore, in Epuru Sudhakar v Govt of A.P., the SC laid down the grounds under which orders under the aforementioned Articles could be challenged. The basis for assailing said orders include orders which are passed as under:
- With no application of mind
- The order itself is mala-fide
- Grounded on extrinsic or immaterial factors
- With no regard for pertinent particulars
Recently, the Supreme Court has maintained that the discharge of the remission policy must be done by an objective and transparent method, the non-observance of which would constitute a clear transgression of the rights guaranteed under Articles 14 and 21. Earlier, the Court had stated that there can be no arbitrariness in the implementation of remission and the same has to be carried out reasonably, fairly, and as an informed decision. A similar stance was taken in the case of Sangeet v State of Haryana.
Recent Developments: The Bilkis Bano Case
The Centre rolled out a special remission scheme as a part of ‘Azadi ka Amrit Mahotsav’, under which remission for inmates will be carried out in three phases: August 15, 2022, January 26, 2023, and August 15, 2023, in order to celebrate the 75th year of independence. Specific categories of prisoners have been explicitly debarred from being considered under this policy such as those convicted under the Unlawful Activities (Prevention) Act, 1967, those convicted for rape, dowry death, etc.
In a rather shocking and highly upsetting move, the Gujarat Government endorsed the release of 11 Bilkis Bano Case convicts. This development stemmed in the aftermath of the SC order wherein it was maintained that the appropriate government for the remission of the convicts’ sentences was the Gujarat Govt. The Gujarat Govt under its remission policy permitted the release of the convicts on account of “good behaviour”.
Such a pernicious move was termed a “threatening message to women” by Advocate Shobha Gupta, Bilkis Bano’s advocate. Moreover, there are shadows of doubt cast on such remission since there appears to be no concurrence of the State govt with the Central govt while passing out the decision.
As part of the reformation process of the offenders, emphasis is laid on reforming the prisoner over his confinement. Considered an act of grace and humanity and in the name and spirit of public welfare, the legislation provides for the reduction and pardon of sentences. Such remissions are to be implemented reasonably and non-arbitrarily, by giving due consideration to the legal provisions and the judicial decisions.
Subjected to limited judicial review, the power to suspend, remit or commute sentences does not surpass judicial scrutiny. Any deviance in this prerogative power of the executive is sure to hamper the workings of the criminal justice system instead of catering towards the reformation of an offender.
- A.G. Perarivalan v. State, 2022 LiveLaw (SC) 494
- Epuru Sudhakar v State of AP, AIR 2006 SC 3385
- Laxman Naskar v State of West Bengal, SCC 2007 SC 626
- Live Law, available at: https://www.livelaw.in/interviews/release-of-rapists-a-threatening-message-to-women-bilkis-banos-lawyer-shobha-gupta-on-remission-212124 (last visited on December 16, 2022)
- Radheshyam Bhagwandas Shah @ Lala Vakil v State of Gujarat, 2022 LiveLaw (SC) 484
- Rahidul Jafar @ Chota v State of U.P., 2022 LiveLaw SC 754
- Sangeet v State of Haryana, (2013) 2 SCC 452
- Satpal. v. State of Haryana. AIR 2000 SC 1702
- State of Haryana v Jagdish, SCC 2010 SC 216
- State of Haryana v Mohinder Singh, SCC 2000 SC 394
- The Hindu, available at: https://www.thehindu.com/opinion/editorial/reviewing-remission-the-hindu-editorial-on-the-need-for-norms-to-release-convicts/article65802598.ece (last visited on December 17, 2022)
- The Prisons Act, 1894 (Act 9 of 1894), s.3(5)
- The Times of India, available at: https://timesofindia.indiatimes.com/india/bilkis-bano-case-convicts-granted-remissions-due-to-good-behaviour-gujarat-govt-tells-sc/articleshow/94923481.cms (last visited on December 17, 2022)
- University of Minnesota, available at: https://open.lib.umn.edu/criminallaw/chapter/1-5-the-purposes-of-punishment/
-  University of Minnesota, available at: https://open.lib.umn.edu/criminallaw/chapter/1-5-the-purposes-of-punishment/
-  The Prisons Act, 1894 (Act 9 of 1894), s.3(5)
-  A.G. Perarivalan v. State, 2022 LiveLaw (SC) 494
-  State of Haryana v Jagdish, SCC 2010 SC 216
-  Satpal. v. State of Haryana. AIR 2000 SC 1702
-  Laxman Naskar v State of West Bengal, SCC 2007 SC 626
-  AIR 2006 SC 3385
-  Rahidul Jafar @ Chota v State of U.P., 2022 LiveLaw SC 754
-  State of Haryana v Mohinder Singh, SCC 2000 SC 394
-  (2013) 2 SCC 452
-  Radheshyam Bhagwandas Shah @ Lala Vakil v State of Gujarat, 2022 LiveLaw (SC) 484
-  The Times of India, available at: https://timesofindia.indiatimes.com/india/bilkis-bano-case-convicts-granted-remissions-due-to-good-behaviour-gujarat-govt-tells-sc/articleshow/94923481.cms (last visited on December 17, 2022)
-  Live Law, available at: https://www.livelaw.in/interviews/release-of-rapists-a-threatening-message-to-women-bilkis-banos-lawyer-shobha-gupta-on-remission-212124 (last visited on December 16, 2022)
-  The Hindu, available at: https://www.thehindu.com/opinion/editorial/reviewing-remission-the-hindu-editorial-on-the-need-for-norms-to-release-convicts/article65802598.ece (last visited on December 17, 2022)