Governments Obliged to Consider Remission of Eligible Convicts Without Waiting for Application: SC

The Supreme Court ruled that appropriate governments must consider the early release of eligible convicts without waiting for them or their relatives to apply for remission.

What is the premature release of a convict?

• The premature release of convicts refers to the early release of prisoners from their sentences before they have served the full term. 
• This can occur for various reasons, such as good behavior, rehabilitation efforts, or changes in law. 

Key Highlights of the Judgment

• Government’s Duty to Ensure Fair Remission Policies
• • The power to grant remission must be exercised in a fair and reasonable manner.
  • A uniform approach is necessary to prevent discrimination and arbitrariness.
  • States and UTs must draft clear guidelines to eliminate ambiguity.

• Legal Basis for Remission
  • Section 432 of the CrPC (now replaced by Section 473 of BNSS) empowers states, UTs, and the Central government to grant premature release to convicts.
  • However, convicts serving life sentences for crimes punishable by death must serve at least 14 years before they become eligible for remission.
• Mandatory Formulation of Remission Policy
  • All states and UTs must create a remission policy within two months if they do not already have one.
  • Policies should:
    • Define eligibility criteria.
    • Prevent political or arbitrary decision-making.
    • Ensure equal application of remission laws across all cases.
• Elimination of Political Interference in Remission
  • The court highlighted past controversial remission cases, including:
    • Bilkis Bano Case (2002 Gujarat Riots) – The premature release of 11 convicts was revoked due to improper government intervention.
    • Anand Mohan Case (Bihar, 2023) – A political decision led to amending prison rules to facilitate his release. 
      • The case is still under judicial review.
• Ensuring Fairness and Transparency in Remission
  • Obligation to Consider All Eligible Convicts
    • If a remission policy exists, the government must review all eligible cases automatically.
    • Convicts or their families do not need to apply for remission.
    • Arbitrary decision-making violates Article 14 (Right to Equality).
  • Justification for Granting or Denying Remission
    • Decisions must be supported by clear reasons and promptly communicated to the convict.
    • Denial of remission affects a convict’s liberty (Article 21), so principles of natural justice must apply.
  • Conditional Remission and Its Restrictions
    • Conditions for remission must:
      • Prevent criminal tendencies.
      • Ensure successful rehabilitation.
      • Not be overly harsh or vague, making it impossible for convicts to benefit.
  • Factors to consider:
    • Nature of the crime.
    • Criminal history.
    • Impact on victims and public safety.
• Implementation and Monitoring Mechanism
  • Legal Services Authorities’ Role
    • Prison authorities must inform convicts about their right to challenge a rejection.
    • District Legal Services Authorities (DLSAs) will:
      • Maintain records of eligible convicts.
      • Ensure state policies are followed.
    • National Legal Services Authority (NALSA) must:
      • Share the Supreme Court judgment with all state and UT legal bodies.
  • Digital Tracking for Transparency
    • A real-time digital portal will be created to track remission cases.
    • This will ensure transparency and prevent delays.
  • Protection Against Arbitrary Cancellation of Remission
    • Once remission is granted, it cannot be revoked without due process.
    • If a convict violates remission conditions, they must be given a hearing before cancellation.
    • Cancellation orders must include clear reasons.
  • Standard Operating Procedure (SoP) for Remission Cases
    • The Supreme Court endorsed the SoP created by NALSA.
    • Directed full implementation of the SoP, including a provision to:
      • Ensure convicts are informed of their right to challenge rejection.
      • Speed up the process of seeking a trial judge’s opinion on remission.

Issues in Granting Remission

Granting remission to prisoners involves various challenges such as legal, ethical, and administrative.

• Lack of Uniform criteria: Different states follow different rules for granting remission to prisoners which causes inconsistency in decision making.
• Political and Executive interference: Political considerations impact remission rather than merit.
  • High profile cases often get political consideration and public sentiment.
• Public security:  There are always high risks to re-offend or commit crime by serious criminals. 
  • Heinous crimes such as Political and Executive Interference raise concerns about public safety. 
• Lack of transparency: Most of the remission decisions are taken behind the doors.
  • Victims and the public play minimal roles in such a decision making process.