Remission under the Law

Context: The Supreme Court has asked the Centre and Gujarat Government to declare grounds on which remission was granted to convicts of Bilkis Bano case.

Background: The Bilkis Bano Case

• One of the convicts in the case had approached the Gujarat and Bombay High courts for premature release as he had served 14 years in prison and was eligible for remission.
• After the petitions were dismissed, he approached the Supreme Court. The Court observed that application for premature release would be considered as per the rules as they stood on the date of conviction.
• Supreme Court directed the Gujarat government to consider his application for remission as per the 1992 policy of the state government.
  • The policy allowed early release of the life convicts who on and after December 18, 1978 have served out 14 clear years imprisonment.
• Based on the advice, the Gujarat government constituted a 10-member jail advisory committee. The committee recommended remission based on their reformed nature..

What is Remission?

• The releasing of a convicted prisoner before the expiry of their sentence is termed as remission. The concept of remission was introduced through the Prisons Act, 1894.
• Power of remission: Since State Governments have been given powers of remission the policy varies from state to state.
• Review Board: Sentence review board is set up by the state to exercise its powers of remission (under section 432 of CrPC).
• Grounds for Remission:
• Under ‘Laxman Naskar v. Union of India’ (2000), The Supreme Court has laid down five grounds for consideration of remission. They are:
  • The committed offence must be an individual act of crime that does not affect the society;
  • Whether the convict has lost the potentiality of committing a crime;
  • Whether there is a chance of repetition of crime in the future;
  • Whether keeping the convict in prison serves any purpose; and
  • The convict’s family’s socio-economic conditions.
• Another important condition for convicts serving life sentences is that they can seek remission only after serving a minimum of 14 years (Section 433A of CrPC).

Provisions

• Constitutional Provision: Articles 72 and 161 provides the President and Governor respectively the power to remit a sentence passed by the courts.
• Power to make laws: Prison is listed as a State subject under the 7th schedule of the Indian constitution. Thus, every state comes up with its policy which governs the remission of sentences.
• Provisions under CrPC: Following provisions exist in Criminal Procedure code with regards to Remission Policy:
  • Section 432 of the Code of Criminal Procedure (CrPC) provides the State Government power to remit sentences (state where crime is committed is referred to as ‘Appropriate government’ to remit sentences).
    • In 2012 it was held that before exercising the power of remission under Section 432 of the CrPC the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court.
  • Section 435 provides that if the prisoner had been sentenced in a case where investigation was done by the CBI (or any other agency) which probed the offense under a Central Act, the State government can order release only in consultation with the Central government.
  • Central government: Central government can concurrently exercise the same power as the State governments to remit or suspend the sentence.
  • Powers of remission under CrPC are different from constitutional powers of remission given to the President and Governor. Under CrPC government acts by itself unlike Article 72/161 where they suggest the respective government to suspend, remit or commute a sentence.

Pardoning Powers of President 

Comparing Pardoning power of the President and Governor

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