New Norms for Sentence Remission

• 15 Jun 2022

For Prelims: Pardoning Power of the President, Article 72, President, Supreme Court, Article 161, Governor

For Mains: Remission and Related Constitutional Provisions

Why in News?

The Ministry of Home Affairs has issued a set of guidelines to the States and the Union Territories on the grant of special remission to prisoners to commemorate the 75^th year of Independence.

What are the Guidelines for Special Remission?

• Special Remission:
  • As part of the Azadi Ka Amrit Mahotsav celebrations, special remission would be granted to a certain category of prisoners. These prisoners would be released in three phases.
• Prisoners Eligible for Special Remission:
  • Women and transgender convicts of ages 50 and above and male convicts of 60 and above.
    • These convicts must have completed 50% of their total sentence period without counting the period of general remission earned.
  • Physically challenged or disabled convicts with 70% disability and more who have completed 50% of their total sentence period,
  • Terminally ill convicted prisoners who have completed two-thirds (66%) of their total sentence and
  • Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine.
  • Persons who committed an offence at a young age (18-21) and with no other criminal involvement or case against them and who have completed 50% of their sentence period would also be eligible.
• Prisoners Excluded from the Scheme:
  • Persons convicted with death sentence or where death sentence has been commuted to life imprisonment or persons convicted for an offence for which punishment of death has been specified as one of the punishments.
  • Persons convicted with sentence of life imprisonment.
  • Convicts involved in terrorist activities or persons convicted under - Terrorist and Disruptive (Prevention) Act, 1985, Prevention of Terrorist Act, 2002, Unlawful Activities (Prevention) Act, 1967, Explosives Act, 1908, National Security Act, 1982, Official Secrets Act, 1923, and Anti-Hijacking Act, 2016.
  • Persons convicted for dowry death, counterfeiting currency notes, offence of rape & human trafficking, offences under Protection of Children from Sexual Offences (POCSO) Act, 2012, Immoral Trafficking Act, 1956, Prevention of Money Laundering Act, 2002, etc., offences against the State (Chapter-VI of IPC) and any other law which the State governments or the Union Territory administrations consider appropriate to exclude would not qualify for the special remission.

What is Remission?

• About:
  • Remission is the complete ending of a sentence at a reduced point. Remission is distinct from both furlough and parole in that it is a reduction in sentence as opposed to a break from prison life.
  • In remission, the nature of the sentence remains untouched, while the duration is reduced i.e., the rest of the sentence need not be undergone.
  • The effect of the remission is that the prisoner is given a certain date on which he shall be released and in the eyes of the law he would be a free man.
  • However, in case of breach of any of the conditions of remission, it will be cancelled, and the offender has to serve the entire term for which he was originally sentenced.
• Background:
  • The Remission system has been defined under the Prison Act, 1894 to be a set of rules formulated for the time being in force regulating the award of marks to, and the consequent shortening of sentence of, prisoners in Jail.
  • It was observed in the Kehar Singh vs. Union of India (1989) case that Courts cannot deny to a prisoner the benefit to be considered for remission of sentence.
    • By denying, 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 just be against the principles of reformation but will also push the convict into a dark hole without there being a semblance of light at the end of the tunnel.
  • The Supreme Court also in the case of State of Haryana vs. Mahender Singh (2007) observed that, even though no convict has a fundamental right of remission, but the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors.
    • Further, the Court was also of the view that a right to be considered for remission must be held to be legal one.
    • This is by keeping in view the constitutional safeguards for a convict covered under Articles 20 and 21 of the Constitution.
• Constitutional Provisions:
  • Both the President and the Governor have been vested with sovereign power of pardon by the Constitution.
  • Under Article 72, the President can grant pardons, reprieves, respites or remissions of punishment or suspend, remit or commute the sentence of any person.
    • This can be done for any person convicted of any offence in all cases where:
      • The punishment or sentence is by a court-martial, in all cases where the punishment or
      • The sentence is for an offence under any law relating to the Union government’s executive power, and in all cases of death sentences.
  • Under Article 161, a Governor can grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute the sentence.
    • This can be done for anyone convicted under any law on a matter which comes under the State’s executive power.
  • The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161.
• Statutory Power of Remission:
  • The Code of Criminal Procedure (CrPC) provides for remission of prison sentences, which means the whole or a part of the sentence may be cancelled.
  • Under Section 432, the ‘appropriate government’ may suspend or remit a sentence, in whole or in part, with or without conditions.
  • Under Section 433, any sentence may be commuted to a lesser one by the appropriate government.
  • This power is available to State governments so that they may order the release of prisoners before they complete their prison terms.

Meaning of the Terms

• Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments, and disqualifications.
• Commutation: It denotes the substitution of one form of punishment with a lighter form of punishment. For example, a death sentence may be commuted to rigorous imprisonment.
• Remission: It implies reducing the period of the sentence without changing its character. For example, a sentence of rigorous imprisonment for five years may be remitted to rigorous imprisonment for one year.
• Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
• Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

Source: TH