Remission

What is Remission?

When a person has been punished for an offence, the competent Government may, with or without restrictions, suspend the execution of the sentence or remit the whole or any part of the punishment. Simply put, remission means reduction of the amount of punishment without changing its character.

Though oft considered to be an outdated piece of colonial legislation, the Prison Act, 1894 outlines the Remission system as a set of guidelines developed for governing the sentence of award of offenders in jail and the subsequent reduction of their sentences. It is a crucial component of the criminal justice system's reformation and retribution premise, which contemporary liberal democracies like India have long flourished for. In Kehar Singh v. Union of India, it was observed that courts cannot deny to a prisoner the benefit to be considered for remission of sentence, as by doing so 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 only go against the reformation beliefs, but it would also plunge the prisoner into a pit of darkness with no hope of escape.

Official Definition of Remission

Chapter XVI of the Model Prison Manual governs remission. Broadly, it remission can be granted in three ways:

1. under the Prison Act, 1894 or state prison act or rules thereunder
2. by the appropriate government under Section 432, Code of Criminal Procedure ("CrPC") (Sction 473 of Bharatiya Nagarik Suraksha Sanhita (BNSS)
3. by the head of the state under Article 72 or 161 of the Indian Constitution

The remission system is designed with the objective of facilitating the rehabilitation of incarcerated individuals. The objective of the programme is to establish and maintain prison discipline and promote positive behaviour among incarcerated individuals. Additionally, it aims to foster educational pursuits and cultivate a more productive work environment, offering the potential for early release as a motivating factor.

The granting of remission should be contingent upon an inmate's proven adherence to good behaviour during their time in custody, their willingness to engage in productive work while in jail, their cooperation and assistance to the prison administration in matters of institutional management, and their overall participation in numerous activities inside the correctional facility.

This Chapter further outlines three types of remission:

1. Ordinary remission is granted for good behaviour, prison work and undertaking literacy classes.
2. Special remission is granted as a reward for meritorious work, such as special services, achievement or conduct of an inmate, in order to create a spirit of healthy competition amongst prisoners. For instance, Government of India, while celebrating ‘Azadi Ka Amrit Mahotsav’ as a series of events to commemorate the 75th Anniversary of India’s Independence, proposed to give special remission to certain categories of prisoners.
3. State Government remission is granted by the state government in exercise of its powers recognized under section 432 of the CrPC.

Ordinary remission is granted by the Superintendent of the prison, while special remission can be granted by both the superintendent of the prison and the Inspector General. Further, Annual Good Conduct Remission is granted for a period of 30 days to any prisoner who for a period of one year from the date of his sentence, has not committed any prison offence. This is granted in addition to any other remission.

Provisions under the Code of Criminal Procedure, 1973

Section 432, CrPC, provides for suspension or remission of sentences.

The suspension or remission mentioned in this section does not interfere with the court's conviction order but only impacts the execution of the sentence. Remission of punishment does not equate to acquittal; the convicted individual retains the right to appeal and clear their name of the conviction stigma. Essentially, an order of remission reduces the unserved portion of an imprisonment sentence, practically reducing it to the time already served. However, legally, it implies that the remaining sentence need not be served, while the court's conviction order and passed sentence remain unaffected.

The section empowers the appropriate government with the power to suspend or remit a punishment with or without any conditions attached to such suspension or remission. In other words, the right to grant remission is vested with the appropriate government and not in any court. Courts cannot intervene or dictate decisions regarding remission or sentence commutation, as it's outside their jurisdiction -“It is not for the judiciary to enter into the arena.”  The trend of the courts has been to favour premature release of prisoners after they have served the terms for sometime. However, a decision on premature release will have to be taken by the appropriate government rather than by the courts. The judicial role ends with conviction and sentencing; subsequent actions like suspension, remission, or commutation fall under the executive's purview.[9] Therefore, the court while passing the sentence of imprisonment for life cannot pass an order specifying a particular term of imprisonment which the accused must undergo before he is released from jail despite the fact that he is entitled statutorily to invoke the powers of remission under Section 432(1) or the appropriate government could suo motu exercise its powers to commute the sentence. Such an order or direction of the court would amount to impinging on the constitutional provisions contained in Articles 72, and 161 of the Constitution.

The power to grant remission is subject to the conditions enumerated in Section 432 CrPC. One important condition is that the accused person will have to be in custody, when the decision to grant remission is made. The power given to the government by this section is purely discretionary, and the law does not enjoin upon the government to give reasons for remitting the unexpired portion of the sentence in the order of remission.

Though the policy regarding premature release of convicts is evolved in exercise of executive powers and that it is within the realm of discretionary jurisdiction, such discretionary power is coupled with the legal duty to exercise the same once the conditions for its exercise are shown to exist. In Laxman Naskar v. State of W.B., the Supreme Court outlines the considerations which should guide the authority in ordering premature release of an offender. These include:

1. whether the offence is an individual act of crime without affecting the society at large;
2. whether there is any chance of future recurrence of committing the crime;
3. whether the convict has lost potential for committing crime;
4. whether there Is any fruitful purpose of confining the convict any more; and
5. what is the socio-economic condition of the convict’s family.

Regarding the appropriate government for cases falling under s. 432(7)(a), the Union Government assumes primacy, while for all other cases within a specific state's jurisdiction, the respective State Government is deemed the appropriate government. The powers to suspend or remit sentences and to commute punishment that is possessed by the State Government may, in the case of sentences of death, also be exercised by the Central Government vide section 434, CrPC. The authority granted by sections 432 and 433 of the CrPC can be utilized by the appropriate government, even if such considerations were previously made and applied through Article 72 by the President or Article 161 by the Governor.

Modifications under BNSS

Section 477 BNSS relates to the State Government's power to remit or commute sentences of persons convicted for the offences linked to the Central Government. The parallel text in S.435 CrPC, provided that the State Government could remit the sentence only after 'consultation with Central Government in certain cases'. However, the BNSS sees the replacement of 'consultation' with that of 'concurrence'. The change reflects existing case law, which had interpreted 'consultation with the Central Government' in S.432 to require agreement, or concurrence, of the Central Government

Special provisions relating to powers to suspend, remit or commute sentences

The authority to suspend, remit, or commute penalties for offences falls under the jurisdiction of the State Government, in consultation with the Central Government, in the following circumstances: (1) when the offences are investigated by the Delhi Special Police Establishment or any other Central Government Agency, (2) when the offences involve misappropriation, destruction, or damage to Central Government property, or (3) when the offences are committed by a Central Government employee while acting or purporting to act in the discharge of their official duties.

In relation to offences, some of which pertain to matters falling under the jurisdiction of the Union's executive power, and for which concurrent terms of imprisonment are imposed, the suspension, remission, or commutation order will only be effective if issued by the Central Government in relation to those specific offences (section 435, CrPC). This power can be exercised by the Government and not by the court.

Constitutional Provisions

Powers are conferred on the President of India and the Governors of States by Articles 72 and 161, respectively, of the Constitution. Both these articles first refer to the power to grant pardons, reprieves, respites or remissions of punishment, and then to the power to suspend, remit or commute the sentence of any person convicted of any offence. This is the power of clemency or mercy which the Constitution entrusts on the executive.

Governor or the President act and must act not on their own judgment but in accordance with the aid and advice of their Council of Ministers. The exercise of this power is subject to judicial review. Remission granted in exercise of this power is not subject to any conditions. However, it has been stated that the guidelines issued in pursuance of these articles have overriding effect.

In Narayan Dutt v. State of Punjab, it has been that state that, “A Governor’s power of granting pardon under Article 161 being an exercise of executive function, is independent of the court’s power to pronounce on the innocence or guilt of the accused. The powers of a court of law in a criminal trial and subsequent appeal right up to this court and that of the President/Governor under Articles 72/161 operate in totally different arenas and the nature of these two powers are also totally different from each other.”

Differences

While Section 432 of the Criminal Procedure Code discusses remission or suspension with any condition, Article 161 of the Constitution only discusses the award of reprieves, pardons, and remissions, etc., without mentioning the imposition of conditions for the grant. The penalties of not meeting the requirements set forth in Section 432(1) of the Criminal Procedure Code are particularly addressed in Section 432(3). The individual subjected to remission might be sent back to jail under Section 432(3). Although comparable to Articles 72 and 161 of the Constitution, Section 432 of the Criminal Procedure Code is a distinct law.

Remission as defined in official government reports

The Malimath Committee Report provided the idea for the introduction of a new form of punishment i.e., imprisonment for life without remission or commutation.

According to the 2021 report published by the National Crime Records Bureau, the premature release of a cumulative count of 2,350 convicted individuals was seen across several states and union territories during the year 2021.

Regional Variations

The prison rules or jail manual for each state outline the guidelines that the state government must follow for granting remission.

Further, the National Human Rights Commission released the procedure/ guidelines on premature release of prisoners, and all the States/ UTs were requested to review the existing practice and procedure governing premature release of life convicts and bring it in conformity with the guidelines issued by the Commission.

For instance, as per the policy implemented by the Uttar Pradesh government in 2021, individuals serving a life sentence may be eligible for premature release upon completing a jail term of 16 years without remission or 20 years with remission. In Gujarat, post the implementation of Section 432(A), only those prisoners who had completed 14 years of imprisonment are eligible for early releases.

It must be kept in mind that it is not open to the State to adopt an arbitrary yardstick for picking up cases for premature release. It must strictly abide by the terms of its policies bearing in mind the fundamental principle of law that each case for premature release has to be decided on the basis of the legal position as it stands on the date of the conviction subject to a more beneficial regime being provided in terms of a subsequent policy determination.

Appearance in official databases

The ePrisons website is an internal database, overseen by authorised personnel. It is utilised to store and manage detailed information regarding remission of prisoners.

Available at https://eprisons.nic.in; the manual for the Prisoner Management System can be accessed at https://eprisons.nic.in/downloads/ePrisonsUM.pdf

Research that engages with Remission

Justice for Bilkis Bano, questions on remission - The article discusses important issues relating to state remission policies and their relationship with punishment that remain unsettled. It highlights the lack of transparency on remission decisions questions the blanket denial of remission for crime categories and argues that such a policy approach takes us towards a retributive punishment framework.

The Commonwealth Human Rights Initiative’s publication on "Rights Behind Bars" has scrupulously recorded significant legal rulings on inter alia remission from 2010 to 2019.