This article is written by Vrinda Baheti and Vishesh Goel, second-year students of Faculty of Law, University of Delhi.

The Constitution of India inheres a right in every citizen of the country till her 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. This article attempts to shed light on the dialogue between the objective of rehabilitation through provisions for premature release of prisoners in the backdrop of the functioning of the administration and law as laid down by the Apex court in India.

 ‘Just as the despotic variant of democracy all too often has jeopardised human rights, its permissive variant threatens these rights by exposing citizens to the crimes of their fellow-men.’ – Dietze

Introduction

In 2016, one of the convicts reprimanded with imprisonment for life in the Rajiv Gandhi assassination case[1], named A. G. Perarivalan sought for details of premature release from prison following the release of Sanjay Dutt[2] three months prior to completion of sentence on the basis of good conduct[3]. Even after the apex court having guided the Tamil Nadu governor to consider the mercy petition of Perarivalan[4], and despite of the Cabinet’s Resolution passed in 2018 recommending release of seven convicts, no action has been taken[5]. Two of the other life convicts named in this case have been reported to go on a hunger strike, protesting for their early release after having served over twenty-eight years in prison[6]. Furthermore, the convict Manu Sharma in the Jessica Lal case[7] has also been in the news to demand early release from prison. The wife of the convict, alleging human rights violation, has recently approached the National Human Right Commission (NHRC)[8]. Expectations of supporters of Sasikala, who has been serving her imprisonment punishment since 2017 after being convicted in a disproportionate assets case[9], have soared with hopes of her premature release by virtue of good conduct[10].

All over India, there is major fervor 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[11]? On the contrary, Rahul Gandhi stated that he harboured no hatred against the convicts of the Rajiv Gandhi assassination case[12].

In the words of Sridip S. Nambiar, ‘The global trend is towards individualising and humanising punishment.’[13] 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.

Statutory Provisions

Under Chapter 20 of the newly anointed Delhi Prison Rules, 2018, the altercation surrounding premature release gets a clear direction towards reformation and rehabilitation of offenders by integrating them into the society and, alongside, ensuring the protection of the society from any further criminal activities of such.

The thread between reformation and retribution is often considered a thin one, but with provisions on premature release of prisoners, commutation of sentence[14], remitting sentence[15] and through powers of the Head of the State under the Constitution of India in article 72 and 161, an attempt has been made envisaging their integration into society.

One of the essentials for consideration for premature release is to ascertain that the prisoner has become ‘harmless’[16] and can be reclaimed as a useful member of the society. The process of determining the same must be transparent and unbiased. Their ‘rehabilitative potential’ is calculated in the light of their conduct, behaviour and performance in prison.

For such purposes, it is mandatory for the Government to constitute a Sentence Review Board (hereinafter referred to as SRB) which holds the discretion to recommend premature release of prisoners. The procedure to be followed by the Board is highlighted in detail in S 1256 Delhi Prison Rules, 2018.

Furthermore, every convict, male or female, within the ambit of S 433 Cr. P. C. shall have the right to be considered for premature release if they have completed 14 years of actual imprisonment without being granted remissions, at the discretion of the SRB. While the minimum completion required is fourteen years, in cases of heinous crimes, convicted prisoners are entitled to be considered after 20 years including remissions. Female convicts not within the scope of S 433 Cr. P. C. undergoing the sentence of life imprisonment can be considered only after completion of seven years of actual imprisonment without remissions.

Landmark Judgements

Herein mentioned are some of the landmark judgments of judicial pronouncements on the law and procedure of premature release of prisoners.

In Life Convict Laxman Naskar v. State of Bengal & Anr[17], the Supreme Court listed an out a few questions forming as guidelines for the basis on which a convict can be released prematurely as under:

1. Whether the offence is an individual act of crime without affecting society at large.
2. Whether there is any fruitful purpose of confining of this convict anymore.
3. Whether there is any chance of future reoccurrence of committing a crime.
4. Whether the convict has lost his potentiality in committing a crime.
5. The socio-economic condition of the convict’s family.

In Mirza Mohammad Husain v. State of U.P.[18], 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.

In Sangeet v. State of Haryana[19], the court interpreted the proviso of S. 433A of the Cr. P. C. in the light of Gopal Vinayak Godse v. State of Maharashtra[20] wherein the Bench dealt with a plea of premature release and stated:

‘Briefly stated the legal position is this: Before Act 26 of 1955 a sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. After the said Act, such a convict shall be dealt with in the same manner as one sentenced to rigorous imprisonment for the same term. Unless the said sentence is commuted or remitted by the appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The rules framed under the Prisons Act enable such a prisoner to earn remissions – ordinary, special and State – and the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and not for any other purpose. As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable an appropriate government to remit the sentence under Section 401 [now Section 432] of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned.’

The Court further held that on the basis of authorities cited, ‘the conclusion drawn in Ashok Kumar[21] was that remissions have a limited scope’ and ‘where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under Section 432, in which case the remission would be subject to limitation of Section 433-A of the Code, or constitutional power has been exercised under Article 72/161 of the Constitution.’

The law was laid down in clear terms in Sangeet v. State of Haryana that a prisoner sentenced to life imprisonment has no indefeasible right of release on completion of either fourteen years or twenty years, and so, the application of S. 432 of the Cr. P. C. to a convict is limited to two cases: where additional remission is to be given to a convict, and where the convict is subjected to life imprisonment which is for an indefinite period subject to certain checks.

In Union of India v. V. Sriharan @ Murugan & Ors[22] the ratio of the judgment discusses the exercise of power of remissions under the statutory provisions of law, stating that a remission ‘does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was.’ The Court also distinguished between remissions for ‘good behaviour’ and remission under S. 432 Cr. P. C.. Reiterating the judgment held in State of Haryana v. Mohinder Singh[23] that power of remission cannot be exercised arbitrarily, the decision must be well informed, reasonable and fair to all concerned.

Relevance in Present

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 SRB. Transportation for life or sentence of imprisonment of life must be passed with the possibility of a premature release according to international norms.[24] In 2013, the European Court of Human Rights held that sentences of life imprisonment with ‘no practical prospect of release’ amounts to cruel and degrading treatment.[25]

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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[26], seeking the stand of the judiciary and questioning the functioning of the SRB on this issue.

Various suggestions were made by the counsel appearing for the activist. To make the process fair, it was suggested that the names of the prisoners seeking premature release be masked so as to not be discriminated against on the basis of caste or religion. Those who are considered for premature release must be aided by legal representation. Further transparency of the meetings of SRB was demanded in the PIL. All materials placed before the SRB in considering a convict for premature release are suggested to be forwarded to the Lieutenant Governor who can review the recommendations forwarded by the Board to determine whether it is in pursuance to the matter concerned or if external influences have been the reason behind such recommendations. While disposing off the petition, the bench consisting of Chief Justice Rajendra Menon and Justice V K Rao asserted the need for ‘transparency’ in the process of consideration, observing that convicts were being granted early release on “whims and fancies” of the SRB.

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.

Following the Delhi High Court order of premature release of Youth Congress leader Sushil Kumar on December 21, 2018 and quashing the recommendation of the SRB, Siddhartha Vashishta, infamously known as Manu Sharma of the Jessica Lal murder case[27], had filed a petition seeking a similar relief by accusing the SRB of unfairly rejecting his plea “without giving any cogent reason”[28]. While the Delhi High Court refused to grant his prayer, the bench ordered the SRB to consider his case at the next meeting.

The allegations against arbitrariness have become more voiced after the Supreme Court direction[29] on the Ram Sewak case[30] wherein the accused was sentenced to imprisonment for ‘over 29 years and according to the counter affidavit, with remission, the total sentence undergone is 36 years’, as written in the order. The court enshrined that a person who has crossed sixty years of age, as in the case of Sewak, and already served 16 years of prison sentence without remission, is ‘entitled to be considered for premature release’. In the recent order by Madras High Court, the Division Bench has stipulated that where authorities playing specific roles under Rules 632 and 633 of the Tamil Nadu Prison Rules, 1983, have given their recommendation for premature release, the same cannot be declined “merely because there was an objection from the Director-General of Police/Inspector General of Prisons”[31].

Then, the uncertainty surrounding the issue is abundantly highlighted. In light of this, a statement by the Constitution Bench of the Supreme Court in K.M. Nanavati v. State of Bombay[32] comes to mind: ‘Pardon is one of the many prerogatives which have been recognised since time immemorial as being vested in the sovereign, wherever the sovereignty may lie.’

Conclusion

To conclude, a letter written by a convict after spending twenty years in prison speaks of the ‘other truth’: ‘Going back to prison isn’t a threat. They are comfortable in prison. The free world is more threatening now.’[33] How much this applies to the Indian scenario is a puzzle, but what remains is an assertion for a need to bridge the gap between lacunae of the law as is laid down to cover human rights of prisoners and build a path for their rehabilitation into the society.

To accomplish this, G. S. Bajpai from National Law University, in his article[34], emphasises on the ‘need to bring uniformity in the procedure, including laws, rules, regulations and policies regarding the system of premature release all over the country.’ Another recommendation of the Professor is for the SRB to consider factors like ‘the probability of prisoner reoffending; the protection of the public, including the victims; the behaviour of prisoners while in prison; the extent of rehabilitation and integration of prisoners in society.’[35] With the amount of discretion given, the gravity of the heinous crime is also seen as a condition to deny remission altogether, which stands contrary to the Supreme Court order[36] that irrespective of the nature of the offence which has been committed, even a life convict will stand eligible for premature release. Consequently, all states follow different approaches to arrive at their domestic legislations for premature release. Moreover, a premature release policy for prisoners has to be followed by a proper rehabilitation plan, because ‘release from prison is perceived as an escape from the pernicious influence of the prison.’[37]

Different states of India have disparate state legislations dictating the premature release of prisoners as a result of there being no uniform policy by central legislation on the topic. Provisions for executive discretion on the power of remissions have been given under the law. Yet, as has been asserted by scholars, a uniform law based on clear semantics is necessitated in the sphere of premature release of prisoners. Procedural checks have to be substantiated on discretionary powers of the executive to grant remissions and attempts must be made to remove clouds of arbitrariness from the entire system of early release of prisoners to remove all reproach.

Endnotes

[1] State of Tamil Nadu Through Superintendent of Police v. Nalini and 25 Ors, available at https://www.sci.gov.in/jonew/judis/16829.pdf.

^[2] Sanjay Dutt v. State of Maharashtra, (1994) 5 SCC 410.

^[3] Vijay Kumar S., Perarivalam seeks info on Sanjay Dutt’s release, The Hindu (17/01/2016), available at https://www.thehindu.com/news/national/tamil-nadu/Perarivalan-seeks-info-on-Sanjay-Dutt’s-release/article14001910.ece, last seen on 22/09/2019.

^[4] PTI, Rajiv Gandhi assassination case: SC asks TN Governor to consider Perarivalan’s mercy plea, The Hindu (06/09/2018), available at https://www.thehindu.com/news/national/rajiv-gandhi-assassination-consider-perarivalans-mercy-plea-sc-asks-tn-governor/article24880611.ece, last seen on 20/09/2019.

^[5] Manikandan M., Rajiv Gandhi assassination convicts Nalini, Murugan launch hunger strike, Hindustan Times (11/02/2019), available at https://www.hindustantimes.com/india-news/rajiv-gandhi-assassination-convicts-nalini-murugan-launch-hunger-strike/story-oaIxuG7PltdzkZYk3Yn1eJ.html, last seen on 23/09/2019.

^[6] Ibid.

^[7] Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), Criminal Appeal No. 179 of 2007 (Supreme Court, 19/04/2019)

[8] ANI, Jessica Lal murder case: Convict’s wife approaches NHRC for early release, ANI News (18/09/2019), available at https://www.aninews.in/news/national/general-news/jessica-lal-murder-case-convicts-wife-approaches-nhrc-for-early-release20190918194647/, last seen on 23/09/2019.

[9] Criminal Appeal No. 300-303 of 2017 (Supreme Court, 14/02/2017).

[10] MC Rajan, Supporters pin hopes on an early release of Sasikala from prison, Hindustan Times (10//09/2019), available at https://www.hindustantimes.com/india-news/supporters-pin-hopes-on-early-release-of-sasikala-from-prison/story-B8xoUBqhIegwMkcoBkRs0M.html, last seen on 23/09/2019.

[11] Konopka J., Victim ‘Angry and Afraid’ as Attacked to be Released From Prison Early, NBC Connecticut (08/09/2017), available at https://www.nbcconnecticut.com/investigations/Victim-Angry-And-Afraid-as-Attacker-to-Be-Released-From-Prison-Early-443028483.html, last seen on 20/09/2019.

^[12] PTI, “No Hatred” For Convicts of Rajiv Gandhi Assassination Case: Rahul Gandhi, NDTV (13/03/2019), available at https://www.ndtv.com/india-news/rahul-gandhi-no-hatred-for-convicts-of-rajiv-gandhi-assassination-case-2007054, last seen on 23/09/2019.

^[13] Nambiar S., Premature Release of Prisoners: Need for a Comprehensive Rehabilitative Policy in India, II Galgotias Journal of Legal Studies (2014).

^[14] S. 433, Code of Criminal Procedure, 1973.

^[15] S. 432, Code of Criminal Procedure, 1973.

^[16] S. 1244, Delhi Prison Rules, 2018.

[17] Writ Petition (Crl.) no. 000110-000110 / 2000.

[18] 2002 (1) JIC 342 (All).

[19] 2013 2 SCC 452.

[20] AIR 1961 SC 600.

[21] (1991) 3 SCC 498.

[22] Writ Petition (Cr.) no. 48 of 2014.

[23] Criminal Appeal No. 141 to 147 of 2000 (Supreme Court, 07/02/2000).

[24] Resolution (76) 2, Committee of Ministers of the Council of Europe, 17 Feb. 1976.

[25] Vinter and Others v. The United Kingdom, European Court of Human Rights, Application no. 66069/09, 130/10, 3896/10, retrieved from: https://hudoc.echr.coe.int/fre#{“itemid”:[“001-122664”]}.

[26] Criminal Appeal No. 52402/2018.

[27] Supra note 7.

[28] PTI, Jessica murder case: Convict moves Delhi high court for premature release, The Times of India (20/01/2019), available at https://timesofindia.indiatimes.com/city/delhi/jessica-murder-case-convict-moves-delhi-high-court-for-premature-release/articleshow/67612675.cms, last seen on 20/09/2019.

[29] Ram Sewak Convict No. 12026 v. The State of Uttar Pradesh, Writ Petition (Cr.) no. 61 of 2016.

[30] Ram Sewak Prasad v. State of U.P. And Ors, 1991 SCR (2) 884.

^[31] TNN, Madras HC orders 86-year-old life convict be freed, The Times of India (15/09/2019), available at https://timesofindia.indiatimes.com/city/chennai/madras-hc-orders-86-year-old-life-convict-be-freed/articleshow/71132296.cms, last seen on 23/09/2019.

[32] 1961 AIR 112.

[33] M. P., Release from prison: Shock or growth?, Bhikshuni Thubten Chodron, available at http://thubtenchodron.org/2009/10/transformation-freedom/, last seen on 15/10/2009.

[34] Bajpai G.S., Norms for premature release need uniformity, The Tribune (31/01/2019), available at https://www.tribuneindia.com/news/comment/norms-for-premature-release-need-uniformity/721434.html, last seen on 22/09/2019.

[35] Ibid.

[36] State of Tamil Nadu v. Veera Bhaarathi, Criminal Appeal No. 120 of 2019 (Supreme Court, 22/01/2019).

[37] Supra note 12.

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