Prisoners’ Right To Remission In India

Coverage of this Article

Key takeaways

-The government holds the power to suspend or remit sentences under Section 432 of CrPC.

Introduction

-The system of imprisonment has several flaws that are to be attended to.

What is remission

-Section 432 of the Criminal Procedure Code deals with the power of the Government to suspend or remit sentences.

Relevant features of the Right to Remission

Articles 72, 161, and Section 432

-Several judgements have contributed to promoting the Right to Remission of prisoners.

Judicial Review over Executive Decision

-When the question came as to whether the President’s findings in such a case would be qualified for scrutiny under judicial review, the judgement in Maru Ram vs Union of India [1980 AIR 2147] was analysed.

Delay in clemency petitions

-The very important problem of the delay caused in remission petitions has been discussed in detail in Shatrughan Chauhan v. Union of India, [Writ Petition (Criminal) No. 55 of 2013].

Not a fundamental right

-It should be understood that a Remission is essentially an act of mercy granted on account of good conduct and the term of imprisonment. 

Conclusion

-Remission is an important part of the reformative system that progressing countries should try to abide by.

Key takeaways

• The government holds the power to suspend or remit sentences under Section 432 of CrPC.
• Such grant of remission is to be informed, fair, and reasonable. 
• Remission of a sentence essentially means the full termination of a sentence at a reduced point.
• Articles 72 and 161 deal with the power of the President and Governor to grant remission.
• Delay in deposing remission petitions amount to violation of Article 21.
• Remission is not a fundamental right. 

Introduction

The system of imprisonment has several flaws that are to be attended to. The way society has looked upon prisoners has always had a regressive shade to it. The system tries to consider them as human beings and allows certain rights to them with this objective in mind. There are several ways by which the Executive carries out this, such as by means of granting reprieval, pardon, respite, commutation, or remission in offences. Articles 72 and 161 of the Constitution empowers the President and Governor to such acts of clemency. 

Of these acts, remission is an important and relevant pardon granted to a prisoner in consideration of good conduct, and completion of sentence. On the 75th year of India’s Independence, the Ministry of Home Affairs has issued a set of guidelines regarding the conditions by which remission is to be granted to prisoners. Recently, the 11 men who were convicted of rape and murder in the 2002 Bilkis Bano case were also released as a result of Gujarat's remission policy. Under this context, this article tries to look into the concept of remission in our legal system and the provisions that deal with it. 

What is remission

Section 432 of the Criminal Procedure Code deals with the power of the Government to suspend or remit sentences. Remission of a sentence essentially means the full termination of a sentence at a reduced point. It differs from furlough or parole because it is a sentence reduction rather than a stoppage of imprisonment. Remission reduces the length of the sentence while maintaining its nature, meaning that the remainder of the term is not required to be served. The outcome of the remission is that the prisoner is given a specific date by which he would be considered completely free in the legal sense. However, such remission would be cancelled if any of the terms are broken, in which case the offender will be required to serve the remainder of his original sentence.

Apart from Section 432, the Articles 72 and 161 deals with remission.  These statutory and constitutional powers co-exist in the case of remission. The power that the Code bestows upon the Union and the States' highest officials cannot be compared to a lofty prerogative granted by the Constitution. The origin, composition, and power are all different. The more power, the more guarded its use would be. This is especially true considering that Section 433-A was proposed by the Central Government and passed by the Parliament. Bypassing the Code of Criminal Procedure (Amendment) Act of 1978, Parliament created Section 433-A.

Relevant features of the Right to Remission

• Articles 72, 161, and Section 432

Several judgements have contributed to promoting the Right to Remission of prisoners. A grant of remission from the President is often the last hope for prisoners who have been sentenced to death or life imprisonment. In Kehar Singh vs Union of India [1989 AIR 653], the Supreme Court looked into the President’s discretionary power in granting remission and observed it in detail. Kehar Singh was arrested in connection with the assassination of former Prime Minister Indira Gandhi. He was convicted of sections 120B and 302 of IPC in the trial stage itself and all his appeals were dismissed. He pleaded with the President to grant him a pardon, and also for an oral hearing to be conducted. However, the President refused to grant pardon citing that it is a case in which the merits had already been decided on by the highest court, and the President cannot decide upon such a case. 

In its judgement, the apex court made clear the powers held by the President under Article 72 and the authority to decide upon the merits of a case, considering relevant facts and information. However, whatever findings the President reaches upon does not override the judicial verdict. It also stated that whether or not the petitioner should be granted an oral hearing is the discretion of the President. This judgement was highly criticised. It was seen to have misunderstood the gravity of the case, which was a matter of life and death for a human. It was also remarked that oral hearing was only a demand that raises out of one of the basic principles of natural justice, that is fair trial. 

• Judicial Review over Executive Decision

When the question came as to whether the President’s findings in such a case would be qualified for scrutiny under judicial review, the judgement in Maru Ram vs Union of India [1980 AIR 2147] was analysed. The question was whether Section 433 and Articles 72 or 161 contravene each other when a grant of remission under the latter overrides the requirements set by the former. The judgement upheld the power of the government advise to the President or Governor. It also held that the statutory provision which is to be followed by the Court will not be restricted by the constitutional provision. 

Later, in Epuru Sudhakar v. State of Andhra Pradesh [(2006) 8 SCC 161], certain guidelines were laid down as to when can a request for clemency be challenged. It can be challenged if the order has been passed without application of mind, mala fide, extraneous, or wholly irrelevant considerations, suffers from arbitrariness, and relevant material has been kept out of consideration. The judgement in this case also held that Article 161 is subject to judicial review. If the High Court is convinced that the Governor was acting on political, casteist, or religious biases, such order of the Governor can be quashed. 

• Delay in clemency petitions

The very important problem of the delay caused in remission petitions has been discussed in detail in Shatrughan Chauhan v. Union of India, [Writ Petition (Criminal) No. 55 of 2013]. It was a case filed by the family members of two prisoners who were convicted to death. After the apex court dismissed their plea in the year 2001, they moved for the same with the Governor and then the President. Though the Governor had rejected their plea, it was not informed by the family. Their petition under Article 72 took over 12 years to be decided upon, which was a rejection. On this inordinate delay that consequently took their rights to life and liberty away from them, they approached the Court for justice.

The three-judge bench of the Supreme Court had to decide whether this amounted to a violation of Article 21. It also had to decide whether a delay caused by the Executive can be seen as a sufficient ground to carry on with the death sentence. 

It was decided that an excessive delay in processing the mercy petition is enough of a basis in and of itself for the convict to request a remission. The President's delay in rejecting the request for clemency, which is clearly in breach of Article 21 of the prisoners' rights, amounts to torture. At the same time, the Supreme Court stated that sentence execution must only be carried out in accordance with the constitutional mandate and declined to set a specific period of time over which unjustifiable delay would constitute torture.

In the case of A.G Perarivalan who was arrested for 31 years in relation to the Rajiv Gandhi Assassination case (State of Tamil Nadu through Superintendent of Police, CBI/SIT vs Nalini and 25 others [(1999) 5 SCC 253]), the Governor had delayed his grant of remission despite being advised by the State Government. While deciding to release him under Article 142 (power of Supreme Court to pass orders in order to do complete justice), the three-judge bench constituting Justice L. Nageswara Rao, B.R Gavai, and A.S Bopanna observed that Governor is the “shorthand expression of the State Government”. The Governor is bound to have acted on the advice of the Cabinet. It was also held that any delay that is not caused by the prisoner themselves, would cause physical and mental exhaustion and was a violation of liberty. 

• Not a fundamental right

It should be understood that a Remission is essentially an act of mercy granted on account of good conduct and the term of imprisonment. It is not a right that could be demanded. In State of Haryana vs. Mahender Singh and Others [Appeal (crl.)  30 of 2005], the Supreme Court held that the State, in exercising its executive power of remission, must assess each individual case while bearing in mind the relevant factors. Even if it is not a fundamental right, remission the Court believed that a right to have a sentence reduced must be upheld as valid in light of the constitutional protections provided to convicted criminals under Articles 20 and 21 of the Constitution. It could be considered a legal right. However, this does not make remission an act of charity or something the prisoner has to beg for. It is more of a reward given for good conduct.  

Conclusion

Remission is an important part of the reformative system that progressing countries should try to abide by. The eventual objective of our jail disciplines should be the rehabilitation of offenders, and every jail needs to have a well-designed and skillfully implemented system of rewards for good behavior among inmates. Instead of keeping the offender under house arrest until a set term, the primary goal of any punishment must be to increase the offender's resolve to do what is morally right and reduce his or her temptation to do what is wrong, as detainment has no chance of bringing the offender to justice and, in most cases, makes the offender an even greater enemy of humanity.