Authored by Pranav Gupta & Kavya Mittal, 2nd-year law students at Rajiv Gandhi National University of Law, Punjab
Remission and the Legal Framework Surrounding It
On the face of it, Remission may look like a straitjacket legal concept, but the overlapping threads of punishment and redemption weaved together make its understanding convoluted. In the case of India, the State derives such power from both the constitutional authority as well as legislative authority. If we first look at the Constitutional jurisdiction, then such power is vested by Articles 72 and 161 of the Indian Constitution. These articles empower the President and the Governor, respectively to grant pardons, reprieves, respites, or remissions of punishment. The procedure for carrying out the above is laid down in the Code of Criminal Procedure, 1973 (“CrPC”) under Chapter XXXII (Section 432 to Section 435), now Chapter XXXIII (Section 473 to Section 478) of the Bharatiya Nagarik Suraksha Sanhita (“BNSS”) covers the procedural grounds of remission. The above interplay between the Constitutional provision of Articles 72 and 161, when harmoniously read with the relevant sections under Chapter XXXII of CrPC gives the requisite authority for an action of Remission.
In this article, the author seeks to analyse the existing problems in the current Remission system, which range from lack of uniformity on the grounds of the same and the unreasonable discretion enjoyed by the Indian judiciary. In light of the Bilkis Bano Case, the authors have analysed various judicial precedents and landmark rulings and have ultimately come up with solutions contextualizing the foreign jurisprudence of countries like Ireland, Norway, etc.
Identifying the Problem
In the Indian context, it can be observed that there are provisions governing the regulation of the power of remission. Though they even cover the cases where it cannot be granted under section 433A, however, there is no provision or statute governing the definite circumstances in which remission can be granted. In this way, the above-mentioned provisions grant the Executive with unreasonable discretionary power which raises serious questions on the credibility of the Remission process. One of the most recent and grave instances of the misuse of this power is the Bilkis Bano Case. In this case, the inmates convicted for the gangrape of a woman and murder of her seven family members were pre-released from prisons, by a State Government which was not even authorised to undertake that action. This demonstrates the loopholes in the remission process in our country. Additionally, the case also highlights the lack of uniform national legislation governing the framework of remission in the country. Most of the states come up with their guidelines and conditions to be considered for remission which means convicts for identical crimes can face vastly different sentences, with some being released early in one state while others languish in prison elsewhere. This not only infringes upon the human rights of the convicts but also raises serious allegations about the judicial integrity of the country.
The discretionary powers to grant remission, vested with Judges are not restricted by any objective test, allowing room for prejudice to creep in. This is a direct violation of the principle of Procedural fairness, recognised as a fundamental right under Articles 14 and 21 of the Indian Constitution. The case of Erusian Equipment & Chemicals Ltd. v. State of W.B. is the epitome of the authority where the Hon’ble SC recognised the principle of procedural equality within the ambit of Article 14 of the Constitution and quashed an order of the government. Further, the same right is protected under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and General Comment 32 on Article 14 of the ICCPR, which highlights the significance of such rights in the effective functioning of the judicial mechanism of the country. India, along with being a signatory to the ICCPR, has also gone one step ahead and conducted four reviews in the same regard. This adds to the significance of the applicability of these Rights in the Indian Context.
Furthermore, the State has been granted this discretionary power to the extent that it is even allowed to make classification of convicts based on the gravity of the offence, but the classification must be non-discriminatory so as not to be violative of Article 14 as held in the Mahender Singh case. Though on the face of it, there appears to be a bar on the making of the classification by the veil of reasonable classification this reasonable classification test is not devoid of subjectivity. Apart from the above two conditions laid down in the case of State of W.B. v. Anwar Ali Sarkar, the courts have further broadened this test’s scope in the landmark Subramanian Swamy case. In this case, the Hon’ble SC expanded its scope by labelling those classifications also as unreasonable whose object is found to be discriminatory but no set criterion or parameters have been laid down for the same. Ultimately, it results in a system where there are no checks and balances for a classification to be held reasonable or discriminatory.
Judicial rulings laying the path forward
The fact has not gone unnoticed by the able judicial mechanism of the country as the Hon’ble Supreme Court of India (“SC”) has, from time to time, come up with landmark rulings in the arena of remission and laid down certain criteria to be considered before granting remission. In the landmark Laxman Naskar case, SC first came up with the particulars of granting remission, and it was observed that a police report is needed for granting such a relief, and the report should focus on the following five points mechanism:
Whether the offence is an individual act of crime without affecting the society at large.
Whether there is any chance of future recurrence of committing the crime.
Whether the convict has lost his potentiality in committing the crime.
Whether there is any fruitful purpose of confining this convict anymore.
Socio-economic condition of the convict's family.
Further, in the Maru Ram case, the Apex court highlighted the need to consider post-conviction conduct while assessing the suitability of convicts for remission and early release. Similar benchmarks have been constituted by the SC in the cases of Jagdish v. State of Haryana and Bhagirath v. Delhi Administration.
It is quite contradictory to note that in the same case where the guidelines for remission were blatantly ignored i.e., Bilkis Bano case according to section 432(7)(b), the State of Maharashtra was the appropriate authority to decide on the issue, however, the SC via its judgment in May 2022, declared the State of Gujarat to be the competent authority to decide the remission of the convicts as per the remission policy notified in 1992. After this, the State of Gujarat granted remission to the 11 convicts, which brought to light the fact that the rationale for granting remission in India is still shrouded in opacity. This was discernible in the later course, as when crucial questions like the relevancy of the opinion of the presiding judge or whether the gravity of the crime is a determinative factor in deciding remission or not. Thus, Bilkis had to knock on the door of SC for justice yet again. The SC also stressed upon the detailed guidelines for considering the pleas of remission. The bench gave a subjective and two-prong mechanism i.e., the reasons for remission should directly relate to the facts and circumstances of the case firstly and should also maintain a nexus with the trial’s record secondly. Moreover, for the process of remission to remain fair, transparent, and free from arbitrariness, the SC revived the five-step test enumerated in the Epuru Sudhakar case so that the remission order granted remains in the contours of law.
Both the Executive and Judiciary have also tried to quantify the rationale behind the granting of remissions in India but to no avail. The Apex Court gave a landmark judgment in this regard in the Mahender Singh case. However, it could not come up with such a policy at the national level which would have brought consistency and uniformity in the grant of remissions. The Executive also took a step in the same direction, as the Ministry of Home Affairs came up with Special Remission guidelines as part of celebrations of Azadi ka Amrit Mahotsav. According to these guidelines, only certain categories of prisoners will be released and that release shall take place in three phases - August 15, 2022 (75th anniversary of Independence), January 26, 2023 (Republic Day), and again on August 15, 2023. In the same guidelines, proper criteria are laid down for the release of various prisoners under different circumstances.
Legal Wariness Around Remission
A legal question that has plagued the legal system for decades is whether Remission is a fundamental right or not. In Kehar Singh’s case, the Apex Court did not explicitly term remission as a fundamental right, but it placed high importance on the remission schemes, thereby laying the foundation for subsequent rulings on remission. The view in Kehar Singh’s case took a more defined and legal shape in the State of Haryana v. Mahender Singh and Ors. In this case, it was observed that while a convict lacks a fundamental right to remission, at the same time, the court deemed the right to be considered for remission a legal entitlement, aligned with constitutional safeguards enshrined under Articles 20 and 21 of the Constitution. The Constitution bench of the SC took more of a reformative and rehabilitative view, stating that such schemes offer healthy motivation for better behaviour, inner improvement, and the development of social fibre. The bench in the same case also cautioned to use such schemes as systematically as possible and not to be abused. Thereby declaring the right to be considered for remission as a fundamental right while the state must evaluate the cases for remission individually based on relevant factors, in the exercise of its executive functions.
Way Forward
In a continuing streak of cases, the Supreme Court has endeavoured to set boundaries in the unexplored terrains of the policy of remission. The laying down of the five-step test and the compulsion of consulting the presiding judge are a few of the welcomed positive steps. However, to insulate the judicial system from any legal lacunae or perpetrating injustice, it is necessary to further make the entire process of remission more specific and transparent. Though this has been attempted by the Hon’ble Court but not in a wholesome fashion and lies segregated in different cases like Maru Ram v. UOI and Laxman Naxar v. State of West Bengal. For the same, the Special Remission guidelines under Azadi ka Amrit Mahotsav, along with the landmark rulings in this regard, can serve as precedents as they laid down proper criteria for the release of various prisoners under different circumstances. The same can be observed in the case of Norway, which has a well-established system of remission based on rehabilitation. Inmates who participate in educational programs and demonstrate good behaviour can earn "early release credits," which shorten their sentences. Thus, this system cannot be exploited by higher authorities exercising their favouritism; rather, this needs to be earned by the inmates themselves, making the mechanism transparent and accessible to all equally.
Additionally, the introduction of a pluralistic jail advisory committee will pave the way for a non-biased and impartial evaluation of prisoners, defeating the practice of potential favouritism by the executive. The establishment of such an independent committee has proved to be a success in Ireland. In Ireland, there is a Parole Board under the Minister for Justice which reviews parole applications from prisoners on set criteria. Thus, inspiration from the same could be drawn to constitute a committee which can autonomously function to evaluate the process of Remission with a staunch system of checks and balances. A double-check mechanism and blind review of the inmate’s profile could be undertaken to further foster transparency.
In the U.S., a certain number of Federal Bureau of Prisons, accord the inmates undergoing incarceration access to various methods to remit their sentence. The most relevant introduction is the pilot program instituted by the Second Chance Act of 2007, through the Elderly and Family Unification Program. There is a clear mention of the eligibility parameters of the same like the offender be at least 65 years or older, serve the greater of ten years or 75 per cent term of imprisonment, having a substantial debt reduction in cost to the government, no substantial risks of engaging in future criminal conduct and, in essence, will be put on home detention either at their home, nursing home, or other residential long-term care facilities, etc.
Even in India, separate age categories can have concrete primary eligibility parameters to qualify for Remission in order to cater to the varied interests of society as well as the inmates. Substantial eligibility criteria would add to the objectivity of the process. Thus, though the Supreme Court held that the states cannot act arbitrarily and must follow due process, the same must be ensured by having a uniform system and procedure for it. The establishment of concrete eligibility criteria would give the authorities responsible for a roadmap to facilitate the functioning of the Remission Policy. Thus, the overturning of the Bilkis Bano Case is a beacon that shall further lay the foundation for a concrete and transparent remission policy in India.