The Union Home Ministry has issued a set of guidelines to the States and the UTs on the grant of special remission to prisoners. These guidelines have been issued to commemorate the 75th year of Independence.


What is ‘remission’?

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.


What are the new norms?

  • Special remission would be granted —
      • As part of the Azadi Ka Amrit Mahotsav celebrations, the special remission would be granted to a certain category of prisoners.
      • These prisoners would be released in three phases — August 15, 2022, January 26, 2023 and August 15, 2023.
  • Prisoners to qualify for premature release under the scheme — The prisoners who would qualify for premature release under the scheme are –
      • 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.
  • Other eligible prisoners —
      • 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.
  • Other categories of prisoners eligible for the remission — 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.
  • Committee to examine the cases of eligible persons —
      • The States and the UTs were told to constitute a State-level screening committee to examine the cases of eligible persons.
      • This committee would comprise the Home Secretary, Law Secretary, Director or Inspector-General of Prisons.


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
      • 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.


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.


Statutory power of remission Vs. Constitutional power of remission

  • The power of remission under the CrPC is different from the constitutional power enjoyed by the President and the Governor.
  • Under the CrPC, the government acts by itself.
  • Under Article 72 and Article 161, the respective governments advise the President/Governor to suspend, remit or commute sentences.
  • Despite the fact that it is ultimately the decision of the government in either case, the Supreme Court has made it clear that the two are different sources of power. In Maru Ram etc. vs Union of India (1980), the SC said – Section 432 and Section 433 of the CrPC are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power.


The Right to Remission

  • 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.