remission
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This article has been written by Viti Bansal.

Introduction

“To shut up a man in prison longer than really necessary is not only bad for the man himself but also it is a useless piece of cruelty, economically wasteful and a source of loss to the community.”[1]

Remission refers to the reduction in the quantum of a punishment without changing the type or character of the punishment to which a convict has been sentenced. In simpler terms, the rest of the sentence need not be undergone. For instance, rigorous imprisonment for 5 years may be remitted to 2-year rigorous imprisonment.

Major provisions governing remission in the Indian context are narrated in the Constitution of India and Criminal Procedure Code 1973.  As per Prisons Act 1894, remission system refers to the rules for the time being in force regulating the award of marks to, and the consequent shortening of sentences of, prisoners in jails.

Object of Remission

The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. Remission affords a remedy in such cases.

Nature of Remission

Grant or non-grant of remission is the prerogative to be exercised by the competent authority and it is not for the Court to supplant that procedure. Grant of premature release is not a matter of privilege but is the power coupled with duty conferred on the appropriate Government to be exercised by the competent authority after taking into account all the relevant factors, such as it would not undermine the nature of crime committed and the impact of the remission that may be the concern of the society as well as the concern of the State Government.[2]

Legal effect of Remission

The legal effect of remission is wholly different from a judicial supersession of the original sentence. In Kehar Singh’s case[3], the Hon’ble Apex Court observed that in exercising the power under Article 72 “the President does not amend or modify or supersede the judicial record. …And this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him.” The President “acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it”. To carry the judgment into effect is an executive function, whereas to cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment.

Grant/Denial of Remission

The Senior Jailor of the prison maintains a Jailor’s Report book as in Form no. V.[4] Form no. V carries remarks about the behaviour of the prisoner and is a relevant consideration to adjudge the grant of remission at the time of evaluating the remission application of the prisoner.

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If the prisoner indulges in the following acts which constitute as prison offences[5] during his/her term of imprisonment, then his/her privilege to be admissible under remission system can be lost[6] as per the discretion of the Superintendent:

  1. Such willful disobedience to any regulation of the prison as shall have been declared by rule made under Section 59 (which grants the state government to make rules for the prison relating the awarding of remarks and reducing the sentence) to be a prison offence;
  2. Any assault or use of criminal force;
  3. The use of insulting or threatening language;
  4. Immoral or indecent or disorderly behaviour;
  5. Willfully disabling himself from labor;
  6. Disobediently refusing to work;
  7. Filing, cutting, altering or removing handcuffs, fetters or bars without due authority;
  8. Willful idleness or negligence at work by any prisoner sentenced to rigorous imprisonment;
  9. Willful mismanagement of work by any prisoner sentenced to rigorous imprisonment;
  10. Willful damage to prison property;
  11. Tampering with or defacing history-tickets, records or documents;
  12. Receiving, possessing or transferring any prohibited article;
  13. Pretending to be ill;
  14. Willfully bringing a false accusation against any officer or prisoner;
  15. Omitting or refusing to report, as soon as it comes to his knowledge, the occurrence of any fire, any plot or conspiracy, any escape, and any attack or preparation for attack upon any prisoner or prison official;
  16. Conspiring to escape, or assist in escaping, or to commit any other of the offences aforesaid.

The Hon’ble Apex Court[7] has laid down the following guidelines to consider in granting remission:

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

Power to grant Remission

Under the Constitution of India 1950

  1. PRESIDENT

According to Article 72, the President has the power to remit the sentence of any person convicted of any offence in

(a) All cases where punishment or sentence is imposed by a Court-martial (judicial court for trying members of the armed services accused of offences against military law)

(b) Cases where punishment is result of an offence against laws in which the executive power (State/Central) extends.

(c) Cases of death sentence.

  1. GOVERNOR

The power of Governor to remit sentence conferred by Article 161 is the same that of as president with the distinction that that the Governor can remit sentence of any person convicted of any offence against any law relating to a matter to which the executive power of only the State (State government) extends.

Exceptions

  • The power conferred to president cannot affect the power conferred on law on any officer of Armed forces of the Union to remit, suspend or commute the sentence passed by a Court Martial.
  • Power of the president can not affect the Governor’s power to remit, suspend or commute a death sentence.
  • The President and the Governors in discharging the functions under Article 72 and Article 161 respectively must act not on their own judgment but in accordance with the aid and advice of the ministers.[8]

Under Criminal Procedure code 1973

  1. The convicted person’s punishment, whole or part, can be remitted by an appropriate government, any time, with or without any conditions which the person sentenced accepts.[9]
  2. The appropriate government cannot initiate the process of remission on its own will but only on the application by the convict.[10]
  3. The application is considered usually by State Sentence Review Boards or Review committees set up the respective government.

The Indian States used to follow different standards for granting remission of sentence. After the National Human Rights Commission (NHRC) appointed a committee to take cognizance of the same, the committee recommended constitution of State Sentence Review Boards to take up cases of long-serving prisoners who have applied for release.

The commission issued broad guidelines in November 1999 to ensure standardization in the matter. Some modifications later and another circular was issued in September 2003. Pursuant to the same, various States constituted Sentence Review Boards which consider prisoners’ application for remission.

  1. When an application for remission of a sentence is made to the appropriate government, the appropriate government should mandatorily[11] seek the opinion of the presiding judge of the court, before which the conviction was confirmed, along with the reason for his/her opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.[12]
  2. The grant of remission maybe conditional, i.e., subject to a condition on which a sentence is remitted which needs to be fulfilled by the person in whose favor the sentence is remitted.[13]
  3. If on any condition the sentence has been remitted, in the opinion of the appropriate government not fulfilled, the appropriate Government may cancel the remission, and thereupon the person in whose favor the sentence has been remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.[14]
  4. The provisions of remission shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.[15]
  5. The application is to be made to the Central Government in cases where the sentence is for an offence relating to sub-section (6) or any law relating to a matter to which the executive power of the Union extends.
  6. In other cases, the application is to be made to the Government of the State within which the offender is sentenced or the said order is passed.[16]

Restrictions on Remission

  • When there is an imprisonment for life is sentenced to a convict, where for that particular offence death is also one of punishments (imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by laws, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life) such person should not release from the prison unless he/she has completed 14 years of his/her imprisonment. [17] The State in its wisdom could still easily provide that life imprisonment shall not be subject to any remission or provide limitations on the same.[18]
  • For the following offences[19] the State Government can grant remission only after consultation with Central Government:
  1. Cases investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any other Central Act.
  2. Cases involving the misappropriation or destruction of, or damage to, any property belonging to the Central Government.
  3. Cases where offence was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty.

Here the the word “consultation” must be read as “concurrence” of the central government.[20]

  • The power of remission will not be available[21] where life sentence has been awarded specifying the following:
  1. The convict shall undergo life sentence till the end of his life without remission or commutation,
  2. The convict shall not be released by granting remission or commutation till he completes a fixed term such as 20 years or 25 years or like.
  • If more than one life sentences are awarded to the prisoner, the same would get superimposed over each other. This will imply that in case the prisoner is granted the benefit of any remission or commutation qua one such sentence, the benefit of such remission would not ipso facto extend to the other.[22]

Duties with respect to Remission

  • It is the duty of the Senior Jailor at the weekly parade to ensure that the Jailor has read out the prescribed circulars about remission rules, rewards, punishment and escapes, and certify the same in the Jailor’s Report Book in Form No. III.[23]
  • During regular inspections, the Inspector in prison shall personally visit every prisoner and ascertain whether the provisions of the rules for granting remission, furlough or parole are carried into effect, afford to a prisoner who so desires a reasonable opportunity of making any application or complaint and investigate and pass order on matters relating to prison discipline.[24]

Endnotes

[1] Burghess, J.C. in (1897), U.B.R. 330 (334).

[2] Rajan v. The Home Secretary, Home Department of Tamil Nadu and Ors 2019 SCC OnLine SC 596.

[3] Kehar Singh v. Union of India [1989 (1) SCC 204]

[4] Gujarat Prisons (Staff Function) Rules 1975, S.13 (15) (V).

[5] Prisons Act 1894, S. 45.

[6] Prisons Act 1894, S. 46(4).

[7] Life Convict Laxman Laskar v. State of West Bengal and Ors. AIR 2000 SC 2762.

[8] Maru Ram v. Union of India [1981 (1) SCC 107]

[9] The Code of Criminal Procedure 1973, S. 432(1).

[10]  Union of India v. V. Sriharan @ Murugan & Ors. (2014) 11 SCC 1.

[11] Sangeet vState of Haryana, (2013) 2 SCC 452

[12] The Code of Criminal Procedure 1973, S. 432(2).

[13] The Code of Criminal Procedure 1973, S. 432(4).

[14] The Code of Criminal Procedure 1973, S. 432(3).

[15] The Code of Criminal Procedure 1973, S. 432(6).

[16] The Code of Criminal Procedure 1973, S. 432(7).

[17] The Code of Criminal Procedure 1973, S. 433 (A)

[18] http://www.legalservicesindia.com/law/article/1219/4/State-Can-Impose-Restrictions-To-Consider-Remission-Claims-SC

[19] The Code of Criminal Procedure 1973, S. 435.

[20] Sangeet vState of Haryana, (2013) 2 SCC 452.

[21] Union of India v. V. Sriharan @ Murugan & Ors. (2014) 11 SCC 1.

[22] Rajan v. The Home Secretary, Home Department of Tamil Nadu and Ors 2019 SCC OnLine SC 596.

[23] Gujarat Prisons (Routine) Rules 1973, 33(c)(5).

[24] Gujarat Prisons (Staff Function) Rules 1975, S. 8(3)(c).


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