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Greeshma V

Intern, Constitutional Rights Initiative

The Constitution of India inheres a right in every citizen of the country till their last breath, be it a free citizen or a prisoner, and this right is protected by the very Constitution which guarantees it. Under humanitarian law, the rights of prisoners get highlighted in respect of prison rules, sentences of imprisonment for life and remission powers vested with the Executive. In light of this, certain popular cases have been in the news wherein convicts like Manu Sharma of Jessica Lal murder case and A. G. Perarivalan of Rajiv Gandhi assassination case has demanded early release from prison. Questions have also been raised on the alleged arbitrariness of the working of the Sentence Review Board.

All over India, there is major fervour with regard to humanitarian rights of prisoners who demand to be released early from prison on the accordance of following the rules laid out for good conduct. The backlash to this demand states the question as to whether such convicts have scope for rehabilitation and reform, and if they can become a useful member of the society. Another important question to pose is whether there is any fear or anger in the society from such convicts being released, as was in the case of rape victim Donna Palomba in Connecticut, United States over her rapist being given early release. On the contrary, Rahul Gandhi stated that he harboured no hatred against the convicts of the Rajiv Gandhi assassination case.

In the words of Sridip S. Nambiar, ‘The global trend is towards individualising and humanising punishment. With the mire surrounding the issue of early release of prisoners, it is of significant importance to go over the statutory provisions in the laws of the land, trace the landmark judgments stating the interpretation of the apex court on the matter and connect it with the present scenario that is struck between humanitarian rights of prisoners and doubts on their rehabilitation.

Remission of Sentence in India

Ø Under the Code of Criminal Procedure Sec 432 provides for the following power to remit sentences: Power to suspend or remit sentences.

When any person has been sentenced to penance for an offence, the appropriate Government may, at any time, without conditions or upon any conditions that the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the penance to which he has been sentenced.

Power of remission is defined in the section 432 and 433 of Criminal Code of Procedure. Life imprisonment is subjected to Statutory Powers of Remission. If punishment is given with the executive process, then remission can be premature release in a sentence of life imprisonment. Because of the Power of Remission Act punishment which is decided by the judiciary has the very serious. It can disturb the constitutional balance as well as separation of powers.

Ø Section 433 – Power to commute sentence.

The appropriate Government may, without the consent of the person-sentenced commute –

A sentence of death, for any other penance provided by the Indian Penal Code, 1860;

A sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

A sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced, or sentenced, or for fine; A sentence of simple imprisonment, for fine.

Ø Section 433A: Restriction on powers of remission or commutation in certain cases.

In spite of anything contained in Section 432, where a sentence of confinement perpetually is constrained on conviction of a person for an offence for which downfall is one of the orders given by legal statues or where a sentence of death constrained on an individual has been driven under Section 433 into one of confinement everlastingly, such individual won't be released from prison with the exception or on the off chance that he has served fourteen years of confinement or life-term penance. The Government has control under Sections 432 and 433, Cr. P.C. to suspend or dispatch or drive the sentence while Section 433A of Cr. P.C. powers confinements on the powers of decrease or substitution in explicit cases.

Ø Under Section 432 of the Code of Criminal Procedure

The Government can dispatch the whole or any bit of sentence to which the individual is prosecuted. Under Section 433 of the Code, the reasonable Government can drive the sentence of confinement for life to confinement for a term not outperforming multiyear or to a fine. Fragment 433A was endorsed to deny less than ideal release before completion of 14 years of detainment to such convicts who stand condemned for a capital offence. The reason of confinement experienced by a charged as an under starter prisoner against the sentence of life confinement can be set-off just if the appropriate master passes a solicitation under Section 432 or Section 433 of the Code. Without such a solicitation passed, and isolated from the courses of action of the material Jail Manual, detainment forever would mean detainment for rest of life.

Power of remission is important when we have to review the premature release. Under section 302 of Indian Penal Code prisoners can file a writ petition against Jail Authorities. If Jail Authorities for placing their case in front of State Advisory Boards for shortening their life imprisonment.

Life imprisonment without the possibility of release.

Supreme court gives the decision of death penalty or life imprisonment without the possibility of release. Prisoners has to face lime imprisonment for life. They have no chance of release. They have to spend their whole life in the prison.

Ø Pardoning Power of the President

President of India is the head of the state. And the powers of the president are always termed as an extraordinary power which includes grant of pardon. The constitution of India also grants the power of pardon to the President of India. The power of pardon is mentioned in Article 72 of the Indian Constitution.

Rules of pardoning the death sentence:

If punishment is given by the court martial the president has the power to pardon or commute the sentence of any person.

The offences which is committed which is related to law or it belongs to the executive power of the union.

President can pardon death sentence.

Ø Pardoning Power of the Governor

Article 161: Power of Governor to grant pardons and to suspend, remit or commute sentences in certain cases.

Meaning of discretionary power: Discretionary means “freedom to act according to one’s judgment”. Governor has the power of discretion means he has the power or right to take decisions freely. He can exercise his power in his own individual judgment without the advice of the council of ministers.

Duration of life imprisonment

1. In Union of India v Shriharan, the apex court held that, “For instance, when we refer to the punishment provided for the offence under section 376A or 376D while prescribing life imprisonment as the maximum punishment that can be imposed, it is specifically stipulated that such life imprisonment would mean for the remainder of that period “.

2. The Hon’ble SC in Gopal Vinayak Godse v. The State of Maharashtra held that “A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life”.

3. The constitution bench of the apex court in Maru Ram v. Union of India held that “We follow Godse’s case to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.”

It is quite apparent the affirmed legal positions that the life imprisonment only means the entirety of the life unless it is curtailed by remissions validly granted under the Code of Criminal Procedure by the Appropriate Government or under Articles 72 and 161 of the Constitution by the Executive Head viz., the President or the Governor of the State, respectively.


Judicial activism on life imprisonment

According to the case of Swamy Shraddananda. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. Hence it imposed restriction on power of appropriate government to commute life sentence”

The cases of Sahib Hussain,Sahib Jan v. State of Rajasthan, and Gurvail Singh,Gala v. State of Punjab, also favoured Swamy Shraddananda’s judgement of imposing restriction on power of appropriate government

Certain issues emerged in the case of Sriharan v UOI

1. Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether the as per the principles enunciated in Swamy Shraddananda , a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?

· Article 72 or Article 161 of the Constitution will always be available being Constitutional Remedies untouchable by the Court.

2. Whether the “Appropriate Government” is permitted to exercise the power of remission under Sections 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its Constitutional power under Article 32 as in this case?

· The exercise of power under Sections 432 and 433 of Code of Criminal Procedure will be available to the Appropriate Government even if such consideration was made earlier and exercised under Article 72 by the President or under Article 161 by the Governor. As far as the application of Article 32 of the Constitution by this Court is concerned, it is held that the powers under Sections 432 and 433 are to be exercised by the Appropriate Government statutorily and it is not for this Court to exercise the said power and it is always left to be decided by the Appropriate Government.

In Mirza Mohammad Husain v. State of U.P, the Allahabad High Court saw how by a Government order dated 11.1.2000 and modified on 25.1.2000, the Governor of U.P. granted sanction for the premature release of various categories of prisoners in Central Jail, Agra. The court laid down the law enumerated in Art 161 and 72 of the Constitution expressing how amnesty or general pardon ‘does not and cannot defeat the ultimate execution of the judgment of the Court, but merely delays it temporarily.’ The court further upheld: ‘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 took away in the garb of power of pardon by the Governor under Article 161 of the Constitution. It is a clear misuse of power which cannot be countenanced and must be struck down.’ In its judgment, the court directed re-arrest of certain released and gave a direction to the State to put all such persons back to prison who were granted premature release on the basis of the Government order.

Present scenario

With the fundamental rights of a person enshrined in the Constitution of India in view, the legislation has strived to reform offenders for rehabilitating them in society. Yet, the subject is of abundant mire owing to various suspicions on the working of the Sentence Review Board. The controversy surrounding the issue of premature release has knocked the doors of the Justice with a recent petition being filed in the Delhi High Court on the basis of allegations of arbitrariness and corruption followed by the SRB in deciding upon the convicts to be considered. Social activist Amit Sahni filed a PIL, seeking the stand of the judiciary and questioning the functioning of the SRB on this issue. The Supreme Court of India has clearly stated that the power to grant premature release is an executive decision and the judiciary is not to interfere with the same. The question that arises is on the functioning of the SRB where allegations have been made against what is believed to be the arbitrariness of the Board in considering convicts for premature release.

Revise guidelines on parole, furlough, premature release of prisoners: MHA

The MHA suggested new guidelines should include that parole and furlough may not be granted as a matter of routine and may be decided by a committee of officers and behavioural experts keeping in view all relevant factors, especially for inmates sentenced for sexual offences, serious crimes such as murder, child abduction and violence.

The Union home ministry said that release of prisoners on parole and furlough is not an “absolute right” and should be allowed only to selective prisoners on the basis of well-defined norms of eligibility while asking all the states and union territories to review the guidelines in this regard. The ministry said that terrorists, people involved in heinous crimes, riots, dacoits or those involved in smuggling of drugs should not be eligible for release on parole as it could have an adverse impact on society. Prisons come under the state governments and decisions to release prisoners on parole or remission in their imprisonment is taken by them on the basis of conduct.


· The Constitution of India, Bare Act

· Criminal Procedure – R.V. Kelkar VI Edition



· Life Imprisonment: A Global Human Rights Analysis - By Dirk van Zyl Smit

· Life Imprisonment in India: A Short History of a Long Sentence – NishantGhokleNUJS L. Rev. 395 (2018)

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