Remission policy and its misuse for political gains

The State prematurely releases convicts under the remission policy after considering good conduct, reformation, period of sentence undergone and health of the convict. However, lately, governments have misused the remission policy in certain cases and extended early release to dreaded criminals for political benefits.

Articles 72 and 161 of the Constitution of India as well as the Chapter XXXII of the Criminal Procedure Code (CrPC), 1973 provide for the suspension, remission and commutation of sentences of convicts. Article 72 empowers the President of India and Article 161 empowers the Governor to grant pardons, suspend, remit or commute the sentence of a person convicted of any offence. Chapter XXXII of the Criminal Procedure Code from Section 432 to 435 lays down the procedures for the suspension, remission and commutation of sentences.

The primary object of remission is to take into consideration certain aspects of the case which do 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. In remission, the duration of the sentence is reduced without changing the nature of the sentence. The prisoner is released with or without conditions, and in the eyes of the law, he would be a free man. However, in case of breach of any of the conditions of remission, it will be cancelled and the convict would have to serve the entire term for which he/she was originally sentenced.

The process for granting remission and suspension of a sentence u/s 432 of the CrPC involves the State seeking the opinion of the court that gave the sentence and the court providing relevant records. The government can then decide whether to grant or reject the application for remission. The power of remission is an executive action and should be exercised fairly and not arbitrarily. Section 433A of the Criminal Procedure Code restricts the power of the President and the Governor such that they can’t commute death sentences to less than 14 years of life imprisonment.

Under Article 72, the President has the power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence, on consultation with the Council of Ministers. Similarly, under Article 161 of the Constitution of India, these powers are conferred on the Governors of states. The remission application ought to be considered by the state and any denial of remission of sentence would mean that the prisoner would have to live in the prison till his/her last breath without there being a ray of hope to be free again. This would not just be against the principles of reformation but will also push the convict into a dark hole without there being a semblance of light at the end of the tunnel.

The Supreme Court in the case of the State of Haryana v. Mahender Singh and Others (2007) observed that even though no convict has a fundamental right of remission or shortening of sentence, the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors. Further, the Court was also of the view that a right to be considered for remission, keeping in view the constitutional safeguards guaranteed to a convict under Articles 20 and 21 of the Constitution, must be held to be a legal one.

The exercise of power of releasing a prisoner on remission must not be looked upon as an act of charity or compassion, but as an act in the discharge of a legal duty required to be performed upon the fulfillment of the prescribed conditions, since remission is earned by a prisoner based on his/her good conduct in the prison.

In Mirza Mohammad Husain v. State of U.P (2002, the Allahabad High Court held that the power of pardon under Article 161 cannot be exercised in a manner which completely negates the scheme of the Constitution regarding the division of powers. An essential function performed by the judiciary cannot be altered or modified or its effect taken away in the garb of the Governor's power of pardon under Article 161 of the Constitution.

In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka (2008) the Supreme Court had passed an order that the appellant therein would not be released from prison till the rest of his life. Such a punishment was considered necessary because the Court substituted the death sentence given to the appellant by the trial court and confirmed by the High Court, with imprisonment for life. Thus, the Court came to the conclusion, on the facts of that case, that in such an eventuality, pre-mature release after a minimum incarceration for a period of 14 years as envisaged under Section 433A CrPC would not be acceded to, since the sentence of death had been stepped down to that of life imprisonment, which was definitely a lenient punishment.

In the cases of State of Haryana v. Bhup Singh and Ors (2008) and Hitesh @ Bavko Shivshankar Dev Vs State of Gujrat (2023), the Supreme Court observed that a life convict's right to ask for remission of sentence would be under the law as was prevailing on the date on which the judgment of conviction and sentence was passed.

Two glaring, egregious instances have been noticed recently. One in the State of Bihar and another in Gujarat. On April 10, 2023 Rule 481(1-A) of the Bihar Prison Manual, 2012 was amended by the State government to the extent that those “guilty of murder of a public servant on duty" would also get the benefit of remission. Earlier, the rule prevented any such relief to the convict for murder of a civil servant on duty. The said amendment is solely political, to extend the benefit to Anand Mohan Singh, a dreaded criminal who was sentenced to death and his wife awarded a life sentence in the brutal killing of an on-duty young IAS officer G Krishnaiya in 1994. However, Supreme Court commuted his sentence to life imprisonment. He has been given premature liberty not because he is falling under any parameter of remission or suffering from ailments or incurable disease, but rather for political reasons.

The indications of tweaking the rule was given by the Chief Minister in a public meeting in January 2023 , which clearly demonstrates that the amendment was carried out for a particular convict and under the pressure of the convict.

In a second instance, 11 persons convicted of gang-raping Bilkis Bano and slaughtering her family in 2002 were granted remission in Gujarat. The matter is sub judice before the Supreme Court as the remission has been challenged in writ jurisdiction.

The tweaking of the prison manual by the Bihar government to extend the benefit of remission to a person convicted of murder and other heinous offences is exceedingly felonious. The sole assumption behind remission is that the convicts have repented, reformed and are fit to reintegrate into society to lead a normal life. However, the premature release of convicts of heinous offences, the mafia, killers and dons is outrageous and weakens the faith of the common man in the criminal justice system.

Concomitantly, it is great injustice to the victims and the families of the victims. Such families must be provided an opportunity to be heard before remission is granted to the convicts as they suffer the most. Remission granted for political reasons has a serious impact on the society and the criminal justice system. It must be subjected to judicial scrutiny before releasing the convicts. The rampant abuse of remission laws by political parties in recent years demonstrates that judicial intervention is needed in the remission scheme. There must be a limitation on discretion exercised by the government to release convicts, especially those found guilty of committing heinous offences.

Nitesh Rana is a counsel for the Enforcement Directorate.