The Supreme Court has issued directions to state and UT governments to standardise and improve the transparency of policies governing permanent remission for the convicts in the country.
About the Directives
- The Case: The Directives were passed by the bench while hearing a suo motu case of 2021 titled as “Policy Strategy for Grant of Bail”
- Update: Additional issues like whether States must provide reasons for all remission rejections and consider eligibility independently of convict applications will be further deliberated on December 3.
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Pardoning Powers of President and Governor
- Pardon: The President of India can grant pardon to a convict absolving both their sentence and conviction and sets the convict free from all sentences, punishments, and disqualifications.
- Commutation: It means changing the nature of punishment and substituting one form of punishment for a lighter form.
- Example: A death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment.
- Remission: Remission means to reduce the period of a sentence without changing the nature of punishment.
- Example: A sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
- Respite: It means to award a lesser sentence in place of the original award due to some special reason like physical disability of a convict or the pregnancy.
- Reprieve: It implies a stay of the execution of a sentence for a temporary period in order to enable the convict to have time to seek pardon or commutation from the President.
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- Directives:
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- Timely Communication of Decisions: States need to take comprehensive steps to ensure adequate information to the convicts who qualify for remission and for their cases to be fairly considered.
- Accessibility to Policy Information: The current remission policies, including any future modifications, must be made available in prisons across the country and uploaded in English on the relevant government websites.
- Informed about the Appeal Rejection:The convicts should be informed of any rejection of applications for permanent remission within one week of passing the order.
- The copies of these rejections needs to be forwarded by the state government to the district legal services authorities concerned ensuring appropriate legal aid to the convicts.
- Pending Appeals: The SC made it clear that pending conviction appeals alone did not justify delays and was critical of the practice of withholding remission consideration due to pending appeals
- However it held that applications may be held pending if there were ongoing appeals filed by the state for sentence enhancement or acquittal
- Individualised Consideration of Cases: The Bench was against applying “stereotype conditions” for remission grants and maintained that any conditions should be tailored based on the specific details of each case.
MHA Guidelines on Remission
The below categories of prisoners, consistently maintaining overall good conduct with no punishment during the convict period in the last three years, may be eligible for special remission:
- Women and Transgender convicts of 50 years of age and above, who have completed 50% of their total sentence period
- Male convicts of 60 years of age and above, who have completed 50% of their total sentence period (without counting the period of general remission earned).
- Physically challenged/disabled convicts with 70% disability and more (duly certified by a Medical Board) who have completed 50% of their total sentence period
- Terminally ill convicts (duly certified by a Medical Board).
- Convicted prisoners who have completed two-third (66%) of their total sentence period
- Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine
- Persons who committed an offence at a young age i.e. between 18-21 years and with no other criminal involvement/case against them, who have completed 50% of their sentence period
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About The Remission Policy
- Remission of a Sentence means to reduce the length of a sentence without changing its nature.
- Example: A five-year sentence of rigorous imprisonment could be remitted to one year.
- Principle: Prisons are meant for rehabilitative justice rather than carry out retributive punishment.
- Objective: Remission Pleas are taken into consideration when certain aspects of the case emerge which did not arise during proceedings in a court of law and the executive can show the convict mercy by way of remission, suspension or commutation as per law.
- Constitutional Provisions for Remission:
- Article 72 (President) and Article 161 (Governor) of the Constitution provide sovereign powers to grant pardon, commutation, remission, respite or reprieve to a convict. The Executive head however can exercise these powers only on the advice of the council of ministers.
- Statutory Provision:
- Section 432 of the Criminal Procedure Code 1973: The Appropriate State governments may remit the whole or part of the punishment to which a convict has been sentenced under Section 432 of the Criminal Procedure Code, 1973 (CrPC)
- In Life Imprisonment Cases: Remission can only be considered after a period of 14 years in jail has been completed as per Section 433A of the CrPC.
- Sangeet versus State of Haryana (2012): SC held that even after a convict served their life imprisonment and completed 14 years in jail, it does not guarantee a right for premature release and that remission should be considered only on a case-by-case basis.
State of Haryana v. Mahender Singh and Others (2007)
- The SC held that the right to be considered for remission as per their Fundamental Rights under Articles 20 and 21 of the Constitution, must be held to be a legal one.
- Since remission is earned by a prisoner based on his/her good conduct in the prison, remission must not be looked upon as an act of charity or compassion, but as an act in the discharge of a legal duty
Mirza Mohammad Husain v. State of U.P (2002)
- The Allahabad High Court held that the power of pardon under Article 161 cannot be discretionary on the part of the executive and exercised in a manner negating Constitution’s division of power principle.
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- State Subject: Prisons is a State Subject, therefore prison rules of each State identify certain reformative and rehabilitative activities that the prisoners can undertake in order to earn remission in the form of days.
- Supreme Court Guidelines on Remission: In Laxman Naskar versus Union of India (2000), the SC had laid down five grounds on which remission is to be considered.
- To determine whether the offence is an individual act of crime that does not affect society.
- Chance of recurrence of crime
- Whether the convict has lost their potentiality in committing crime
- Whether there is any fruitful purpose of confining the convict any more
- Socio-economic condition of the convict’s family
| For Remission |
Against Remission |
| Reformative Justice: Granting Remission promotes the Principle of Reformative Justice and alienating the possibility is not conducive to reformation. |
Misused: The power can be abused for political gains or to protect the interests of the privileged few.
- Example: remission granted to rape covicts of Bilkis Bano Case
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| Basic Right: The opportunity to reform and reintegrate must be given to every prisoner |
Separation of Powers: Granting pardoning power to the executive goes against the separation of powers principle eroding public confidence in the impartiality and integrity of the criminal justice system. |
| Burden to State: Convicts in lesser crime could be granted remission, which will help them in reintegration in society and also will be less burdensome on state. |
Transparency: Unlike an open judicial trail, the decision-making process behind pardons is often opaque, with little public scrutiny or justification provided for the executive’s actions. |
| To Correct Judicial Mistake: It may be granted as a corrective measure for excessive or wrongful incarceration |
Undermines Judicial Independence: Judicial decisions are undermined by the executive exercising this right rendering the judicial process less independent and less respected. |
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Notable Remission Cases in India
- Rajiv Gandhi Assassination Case (1991): The Tamil Nadu government has recommended a remission for A.G. Perarivalan, one of the convicts in the Rajiv Gandhi assassination case, on the grounds of good behaviour. The Plea is rejected by the Governor.
- Assassination of Punjab Chief Minister Beant Singh (1995): The Punjab government in 2014 has decided to release some convicts involved in the assassination of the former Chief Minister Beant Singh on the grounds of good behaviour sparking debate about justice and the rights of victims’ families.
- Jessica Lal Murder Case (1999): In 2011, the Delhi government recommended Sharma’s premature release, citing good conduct which was overturned. The convict Manu Sharma was sentenced to life imprisonment in the murder case
- Bilkis Bano Case: 11 rape convicts were granted remission by the Gujarat government. The decision was overruled by the Supreme Court.
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November 6, 2024
