Premature release entails a prisoner’s release before the completion of his judicially ordained sentence. States may grant premature release to convicts owing to several factors, as laid down in the case of Bir Singh v. State of Himachal Pradesh, which includes good conduct by the prisoner, no commission of jail offence, prisoner’s punctual return from furlough, etc. The Hon’ble Supreme Court in the recent case of Rashidul Jafar v. State of UP & Anr. has asserted that after the completion of fourteen years, a convict may be considered by the respective High Court of the state to be prematurely released, aside from release on bail. Remission is one such way through which such a release may be effectuated.

A state government has the power under Section 59(5) of the Prisons Act, 1894, to take the necessary steps to amend the provisions of the Remission Rules at an earlier date, as laid down in the case of State of Haryana v. Mahender Singh. In the exercise of such provision, the Bihar government recently amended its prison manual to change Rule 481, thereby removing the clause that prohibits the release of any person convicted of killing a public servant on duty. This facilitated the premature release of over 20 convicts, including Anand Mohan, who was awarded life imprisonment by the Patna High Court for the murder of District Magistrate G. Krishnaiah. Mohan was released after serving 14 years of imprisonment.

According to Bihar’s remission policy, such convicts were not eligible for premature release until they had completed a minimum of twenty years of their life sentence. This also came in succession to the release of 11 convicts guilty of the murder of Bilkis Bano, a clear subversion of justice by politics.

Who has the Authority to grant Remission?

The Apex Court relied on the case of Gopal Vinayak Godse v. State of Maharashtra and held that the power to grant remission is solely the domain of the appropriate government. Sections 432 and 433 of the CrPC clarify that ‘appropriate government’ refers to the central government in cases where a sentence has been passed for an offence relating to the executive power of the union and the state government in other cases, such as when the offence is against any law relating to a matter to which the executive power of the state extends. Additionally, the Supreme Court in the case of Union of India v. Sriharan & ors. held that to ascertain which government would be the appropriate government, the sentence imposed under the CrPC or any other law needs to be seen.

The Mohd. Munna Case further laid down that the Prisons’ Rules are made under the Prisons Act, which by itself does not confer any authority to commute or remit a sentence. However, constitutionally, Articles 72 and 161empower the President and the Governor of the State, respectively, to grant remission, suspension, or commutation of the sentence to a convict. Further, the Laxman Naskar Case laid down that a life convict is not necessarily entitled to be released prematurely, but if the government frames any schemes or rules for early release of such convicts, they will be treated as guidelines for exercising its power under Article 161 of the Constitution.This article offers free shipping on qualified Face mask products, or buy online and pick up in store today at Medical Department

The extent of the power to grant remission by the President and the Governor is absolute and cannot be fettered by virtue of any statutory provision, as held in the Maru Ram Case. It was further held that in the exercise of such powers, the President acts on the advice of the Council of Ministers and the Governor acts on the advice of the State Government.

Decoding the Unconstitutionality Behind Premature Release

In the Satish Kumar Case, the Patna High Court held that the government may make a reasonable classification based on intelligible differentia between the same class of prisoners for the purpose of granting remission. Such differentia is not based on a ‘yardstick,’ but on the basis of each circumstance, thereby making it discretionary. The discretionary power of the executive vis-à-vis granting of remission in itself is not unconstitutional but becomes so if such exercise is undertaken arbitrarily.

The reasons for said unconstitutionality in both the Anand Mohan and Bilkis Bano cases begin with the disregard given to the factors relevant to determining premature release, the most important of them being the gravity of the offense. The possibility of reformation by itself does not tip the scales enough to undermine the gravity of the crime committed, as against what was held in the Bir Singh Case. In reference to this, the Supreme Court has sought original records to ascertain what consideration the decision to alter the policy is based on. This could be because the prima faciereason for the same appears to be a political one, as was apparent in the speech given by Chief Minister Nitish Kumar, whereby he assured the public that he ‘was working on bringing about the release of Mohan.’ Further, an additional link between all convicts who have been released remains their affiliation to minority caste groups in Bihar, and such a move could potentially aid the present government with vote bank politics.

The constitutional protection of personal liberty should not be exercised in an arbitrary manner with respect to considering applications for premature release. Amendment of remission policies to favour a few in lieu of preferring applications for remission put forth by others remains arbitrary. It becomes the prerogative of the respective District Legal Services Authorities to ensure that the policy benefits all eligible prisoners equally.

The Possibility for Retrospective Application of Remission Policy

In State of Haryana v. Jagdish, the Apex Court had held that the premature release plea had to be considered on the basis of the policy as it stood on the day the accused was convicted by the Trial Court. In both the Anand Mohan and Bilkis Bano cases, the policy as it stood on the day of conviction made remission unconstitutional.

In the former case, the policy with respect to remission as it stood on the day of Mohan’s conviction would have made him ineligible to be released without serving the mandated twenty years of life imprisonment. However, the amended policy made him eligible to be prematurely released, which is in clear contravention of the State of Haryana v. Jagdishcase. With regards to the Bilkis Bano Case, all eleven convicts derived the benefit of the retrospective application of the amended Remission Policy, which brings various issues to the forefront with respect to the criteria for consideration of premature release.