Remission Granted Or Not Granted: Crossing The ‘Laxman Rekha’

Legal Provisions and Case Laws

The State has the power to suspend, remit, or commute the sentences of convicts under the Constitution of India and the Code of Criminal Procedure. This power is vested in the state by virtue of Articles 72 and 161 of the Constitution, which give the President and the Governor, respectively, the power to grant pardons, reprieves, respites, or remissions of punishment. Chapter XXXII of the Code of Criminal Procedure, 1973 (“CrPC”) also provides for the suspension, remission, and commutation of sentences, and sets out the procedures for doing so. Article 72 empowers the President of India to grant pardons, suspend, remit or commute the sentence of a person convicted of any offence and under Article 161 the Governor's power is analogous to that of the President under Article 72, but it is limited to offenses under State laws. The President or Governor of State holds this constitutional prerogative to grant pardons, often acting on advice from the Council of Ministers. They consider factors like offense severity, convict behavior, public interest, and judicial input when recommending pardons. Chapter XXXII of the CrPC from Section 432 to 435 lays down the procedures for the suspension, remission and commutation of sentences. Section 432 grants the government power to suspend or remit sentences, while Section 433   deals with the power to commute sentences. Section 433A mandates remittance only after 14 years of imprisonment. Section 434 allows the Central Government, in cases of death sentences, to exercise powers from Sections 432 and 433. Section 435 states that State Governments should consult the Central Government when dealing with cases under specific circumstances involving the Central Bureau of Investigation, central government personnel, or damage of property belonging to the Central Government.

In one of the earliest decided cases on this issue MaruRam v. Union of India, Apex Court had highlighted the need to consider post-conviction conduct while assessing the suitability of convicts for remissions and early release. In the Kehar Singh v. Union of India, it was noted that prisoners can't be denied the chance for sentence remission. Denial would violate rehabilitation principles and confine convicts indefinitely and would be an anathema to the principle of reformation. In State of Haryana v. Mahender Singh and Ors., Supreme Court observed that while convicts lack a fundamental right to remission or cannot claim mercy as a matter of right, the State must evaluate cases individually based on relevant factors, in exercise of its executive functions. The Court deemed the right to be considered for remission a legal entitlement, aligned with constitutional safeguards enshrined under Article 20 and Article 21 of the Constitution. This decision essentially brings out the essence that the power to grant clemency is more of a policy nature instead of a judicial one as it rests upon the prerogative of the executive as releasing a prisoner through remission isn't a charitable gesture but a legal obligation fulfilled upon meeting set criteria. Remission is earned through good behavior of the convict post-conviction in a prison or correctional facility.

The Supreme Court in Swamy Shraddananda @ Murali Manohar Mishra v. State ofKarnataka commuted the death sentence of the appellant to that of life imprisonment. The Supreme Court then ruled that the appellant would not be released early, even after serving 14 years in prison, barring application of Section 433A CrPC in this case. This was because the sentence of death had been substituted with that of life imprisonment, and the appellant was therefore considered to be serving a life sentence.. In State of Haryana v. Bhup Singh, where the Government of State of Haryana vide a policy decision categorized life convicts for early release. Respondents' cases were excluded due to their involvement in heinous crimes—murders of over two people—requiring 20 years' actual imprisonment or 25 years with remissions for consideration. The Supreme Court in this case by placing reliance upon the State of Haryana v. Mahender Singh & Ors., held that a life convict's right to seek sentence remission adheres to the laws in force at the place of offence committed and at the time of conviction. If executive instructions lack retroactive validity due to non-alignment with Rules framed thereunder the Prison Act, the binding precedent nature of the decision is questioned. Decisions of the Courts are authoritative for their ruling, do not follow an inferred logic. While passing this order the Apex Court ruled that the case of the Respondents shall be considered afresh having regard to the policy decision as was applicable on the date on which they were convicted and not on the basis of any subsequent policy decision. In May 2022, the Supreme Court reiterated the dictum laid down in the Mahender Singh case, in Radeshyam Bhagwandas Shah @ Lala Vakil v. State ofGujarat & Anr. held that the State Government must review a petitioner's application for early release according to the policy in place at the time of conviction. This guideline pertains to the state where the crime occurred, disregarding the state where the trial ended due to exceptional circumstances. The victim in the said case was Gujarat riots gangrape survivor Smt. Bilkis Bano who later challenged the order of the Supreme Court by way of a review petition granting the premature release of convicts. Though the convicts were released by the State of Gujarat under its remission policy, concomitantly it was equally surprising that they were given a warm welcome with garlands and band like heroes!

Recently in August 2023, Supreme Court in a matter titled Rajo@Rajwa@Rajendra Mandal v. State of Bihar the Remission Board rejected the petitioner’s application for premature release twice. In this writ petition filed by the petitioner under Article 32, the Court addressed the request for premature release by a petitioner held for 24 years without remission or parole. The case involves the Remission Board's denial of the petitioner's release application on two occasions, due to the negative input from the Presiding Judge. The Court expressed concern about the excessive reliance on the Judge's opinion, based solely on trial court conviction records and High Court affirmations. In the second instance the application was rejected in light of adverse/negative opinions received from the Superintendent of Police, and the Presiding Officer of the convicting court, and noting Rule 529(iv)(b) of the Bihar Jail Manual (as amended by Notification dated 10.12.2002 and notified on 28.12.2002) which barred ‘Prisoners who have been convicted for organized murder in a premeditated manner and in an organized manner’ to become eligible to avail the benefits of remission.

Rejecting the existing approach, the Court outlined considerations for granting remission. Governments should weigh factors like the crime's impact on society, recurrence chances, and the convict's potential for future offenses. They must assess the necessity of ongoing confinement, factoring in age, health, family ties, reintegration prospects, remission earned, and post-conviction conduct including education, volunteerism, work, conduct in jail, social initiatives, and personal growth. For determination of these factors the Government may avail the assistance of a report formulated by a trained psychologist following interactions with the convict. This report would offer a holistic view of the person's progress, rehabilitation attempts, and prospects for successful reintegration into society after conviction.

Furthermore, the Apex Court also stressed the importance of a comprehensive approach, extending beyond the Presiding Judge's view under Section 432(2) CrPC. Over Reliance on the Judge's report might compromise the primary goal of remission and has the potential to strike at the heart, and subvert the concept of remission – as a reward and incentive encouraging actions and behaviour geared towards reformation – in a modern legal system.

Unlike the Presiding Judge, Probation Officers and Jail authorities have a closer perspective on a prisoner's daily life, making them better judges of post-conviction changes and reintegration potential of the convict. The Court emphasized that the Judge's opinion should align with statutory demands and comprehensively assess factors outlined in LaxmanNaskar v. State of W.B. which are: (i) whether the offence affects the society at large; (ii) the probability of the crime being repeated; (iii) the potential of the convict to commit crimes in future; (iv) if any fruitful purpose is being served by keeping the convict in prison; and (v) the socio-economic condition of the convict's family. These factors were also upheld in State of Haryana v. Jagdish by the Apex Court. However, in Union of India v. V. Sriharan Supreme Court has upheld the necessity of following the procedure laid out in Section 432(2) of the CrPC for suspension or remission of sentence. This procedure requires the appropriate government to seek the opinion of the presiding judge of the court that convicted the prisoner. The opinion of the presiding judge will be based on the nature of the crime committed, the prisoner's record, and other relevant factors. This will help the appropriate government to make the right decision about whether or not to suspend or remit the sentence and in better discharge of duties entrusted to the Executive Head(s) by the Constitution.

However, still there remains a conflict whether necessary checks have been placed upon such power of the Executive as has been witnessed in the instance of Bilkis Bano and another instance involving the Bihar state government who in April 2023, amended Rule 481(1-A) of the Bihar Prison Manual, 2012. The amendment aimed to extend remission benefits to those convicted of ‘murder of a public servant on duty.’ This is a politically motivated change and will benefit Anand Mohan Singh amongst others, who was sentenced to death for the murder of an IAS officer Shri G Krishnaiya in 1994. The High Court had earlier commuted his sentence to that of Life imprisonment. The Bihar government defended its move by stating that any discrimination based upon the status of victim was not present in remission rules of many of the State.

In Gopal Vinayak Godse v. State of Maharashtra and Ors. it was observed that the Prisons Act, 1894 is a law that regulates prisons and the treatment of prisoners. It is observed in every case that such rules were made under the Prisons Act, 1894, and that they have statutory force. It does not grant any authority the power to commute or remit sentences. However, Section 59 of the Act allows the State Government to make rules for rewards for good conduct. Therefore, the rules made under the Act should be interpreted within the scope of the Act, and should not be used to grant powers that are not explicitly granted by the Act.

The way forward

The criminal justice system should recognize the link between the severity of crime and punishment. They believe that this is especially important at a time when intolerance, hatred, violence, and the zeal to undermine diversity are on the rise. The acts of compassion towards convicts that are insensitive to the victims of crime, and against acts of mercy that become tools of oppression and argues that these are not dystopian concerns, but lived realities. Remission of punishment should be used to uphold a sense of community justice, and constitutional provisions and the judiciary should not be undermined by the whim and fancies of the state government. The moves such as grant of special remission to certain prisoners as a part aof Azadi ka Amrit Mahotsav celebrations are good measures to inculcate reforms into convicts and the remission will be granted to eligible prisoners such as women and transgenders of 50 years above, men of 60 years above, besides divyang convicts with 70% or more disability among others, however these convicts must have completed 50% of their total sentence period without counting the period of general remission earned, juveniles, terminally ill and indignant who have shown good conduct and have undergone a significant portion of their sentence ranging from 50% to complete sentence (66% in case of terminally ill) are also eligible to avail benefits of this scheme. Further, people sentenced to death penalty; life imprisonment; convicted of offences under TADA, 1985; UAPA, 1967 (and other terrorist and security legislations) besides convicts under POCSO, 2012; PMLA, 2002; ITPA, 1956; offences against the State enumerated in Chapter VI of IPC; and any other law which the State governments or the Union Territory administrations consider appropriate to exclude would not qualify for the special remission will be bereft of benefit under this remission policy.

In the light of above said discussion, the Apex Court or the Central Government must consult all the stakeholders and formulate uniform guidelines, like model prison manuals, which will cater to the needs and interests of victims and convicts alike and balance them when considering the cases for clemency. This will help us to eliminate the use of money and muscle power from the elections and politics as well. The Judiciary should also conciliate and strengthen the views rendered in V. Sriharan and Laxman Naskar and introducing the concept of judicial scrutiny alongside popularising conditional remissions instead of unconditional ones. Conditions such as active social work and engaging in education would help the convicts to be re-integrated to the mainstream. This will probably serve as a Laxman Rekha which will serve as a guiding light for times to come. Otherwise in absence of any such mechanism we may tread towards anarchy and lawlessness.

The author is an Advocate at Punjab and Haryana High Court. Views are personal.