Remission without application: Why did the Supreme Court give its decision?

Why in the NEWS?

• The Supreme Court has given a historic verdict on remission without application.

Key Points:-

• The Supreme Court in its recent judgment directed the states to consider the premature release of prisoners even if they have not previously applied for remission.
• This decision has been given keeping in mind the rights of prisoners to reduce overcrowding in prisons and rehabilitation.

What will you read next in this topic?

• Supreme Court's decision and background
• Legal basis of remission in India
• Constitutional Provisions Related to Pardon Power of President and Governor
• New approach and changes by the Supreme Court
• Directions given by the Supreme Court to the States
• Status of prisons in India and impact of Supreme Court verdict

Supreme Court's decision and background

• The Supreme Court bench of Justice Abhay S. Oka and Justice Ujjwal Bhuyan delivered this decision in the case “In Re: Policy Strategy for Grant of Bail”.
• This was a suo motu case, which was initiated by the court itself in 2021 to solve the problem of overcrowding of prisons.
• Earlier, in two separate decisions of 2013 (Sangit vs. State of Haryana and Mohinder Singh vs. State of Punjab), the Supreme Court had said that state governments cannot pardon the sentence suo motu, unless the convict himself applies. But now the court has changed this approach.

Legal basis of remission in India

(i) Power of remission

• Under Section 473 of the Code of Protection of Justice of India, 2023 (BNSS) and Section 432 of the Code of Criminal Procedure, 1973 (CrPC), state governments are given the power to reduce or remit the sentence of convicts.
• This power can be given suo motu or on the application of the convict.

(ii) Conditions and limits of remission

• Under Section 475 of the BNSS and Section 433A of the CrPC, convicts sentenced to life imprisonment are required to serve a minimum of 14 years in jail.
• State governments can impose conditions for granting remission in certain specific cases, such as the convict reporting regularly to the police.

(iii) Difference from the pardon power of President and Governor

• The power to remit sentences is given to the President under Article 72 of the Constitution and to the Governor under Article 161.
• Remission granted by the state government and pardon granted by the President/Governor are different processes.

Constitutional Provisions Related to Pardon Power of President and Governor

• Article 72 – Pardon Power of President
• Article 161 – Pardon Power of Governor

Pardoning Power of President in India

Pardon

• The granting of ‘pardon’ to an offender by the President of India nullifies both the sentence and the conviction. 
• It completely relieves the convict from all punishments, penalties and disqualifications.

Commutation

• ‘Commutation’ means changing the nature of punishment. 
• For example, death sentence can be commuted to rigorous imprisonment, which can be further commuted to simple imprisonment.

Remission

• ‘Remission’ means reducing the period of sentence without any change in its nature. 
• For example, a sentence of rigorous imprisonment for two years can be reduced to rigorous imprisonment for one year.

Respite

• ‘Respite’ means awarding a lesser sentence in place of the sentence originally awarded due to a special circumstance, such as physical disability of the convict or pregnancy of a female convict.

Reprieve

• ‘Reprieve’ means the process of postponing a sentence for some time, so that the convict gets time to seek pardon or commutation of sentence from the President.

Pardoning Power of Governor

• Similar to the President of India, the pardoning power of the Governor includes the power to grant pardon, commutation, remission, respite or reprieve.
• The pardoning power of the Governor is almost similar to the pardoning power of the President. However, both differ in some respects.

Death Sentence

• The President can grant pardon in all cases where the sentence awarded is death sentence.
• The Governor cannot pardon a death sentence. He can only postpone, reduce or commute the death sentence.
• Even if the death sentence is awarded under a state law, the power to pardon it lies only with the President and not the Governor.

Court Martial

• The President of India has the power to grant pardon in respect of a sentence or punishment awarded by a court-martial.
• The Governor does not have the power to grant pardon in respect of a sentence or punishment awarded by a court-martial.

New approach and changes by the Supreme Court

(i) Earlier approach (2013 judgments)

• Sangeet vs. State of Haryana (2013):-
• The Supreme Court had said that the state governments cannot grant suo motu exemptions.
• It will be mandatory for the convict to apply first.
• Mohinder Singh vs. State of Punjab (2013):
• The court had said that even the court cannot exercise the power to grant suo motu exemptions.

(ii) New approach (2024 judgment)

• Now the Supreme Court held that if a state implements an exemption policy, it is the duty of the government to suo motu consider the release of all eligible convicts.
• If the state governments do not do so, it would be discriminatory and violate Article 14 (Right to Equality) of the Constitution.

Directions given by the Supreme Court to the States

• All states were directed to formulate a comprehensive policy for exemption within two months, if there is no policy already in place.
• Reasonable conditions for exemption should be prescribed, which may include the following:
• The purpose of the crime and its gravity.
• The criminal history of the convict and the possibility of rehabilitation.
• The impact of the exemption on public safety.
• The conditions of exemption should not be too harsh, vague, or oppressive, which would deter the convict from taking advantage of the exemption.
• It is mandatory to give notice to the convict before cancelling the exemption and give him an opportunity to file a response.
• Exemption should not be cancelled due to minor or trivial violations.

Status of prisons in India and impact of Supreme Court verdict

(i) Overcrowding of prisons in India

• According to National Crime Records Bureau (NCRB) data for 2022:
• India's prisons are overcrowded by 131.4%.
• Total prisoners: 5,73,220 | Total prison capacity: 4,36,266
• Number of under trial prisoners: 75.8% (i.e. 3/4 prisoners are still awaiting verdict of their trial).

(ii) Statistics of prisoners released prematurely

• In 2020: 2,321 prisoners
• In 2021: 2,350 prisoners
• In 2022: 5,035 prisoners (almost double increase)

(iii) Potential benefits of Supreme Court verdict

• Prisons will be overcrowded.
• Rehabilitation of prisoners and their rights will be promoted.
• States will be made more accountable so that they implement their remission rules fairly.

Some other points:-

• This decision of the Supreme Court is an important step towards making the remission policy in India more transparent and equitable. 
• Now the state governments will have the responsibility to automatically consider the remission application of every eligible convict.
• This decision strengthens Article 14 (right to equality) of the Constitution and will help in reducing the overcrowding of prisons.
• This decision of the Supreme Court marks a historic change towards reform and rehabilitation in India's criminal justice system.