When can a prisoner be released early?

Dhruva Vig

 Premature release of a prisoner

Law has been defined as a system of rules created and enforced through social or governmental institutions to regulate behaviour. The Latin term ‘lex’ has been used in various applications of modern-day legal systems as a collective term to represent the aggregation or collection of laws to a given nation.

The Old English term ‘lagu’ was often used in archaic times to refer to the ordinances/rules that were prescribed by an authority.

Throughout their vast and ever-growing history, all legal systems deal with the same basic issues, be it the sanctioning of law or penalising those who disobey such rules. Persons who fail to uphold such law are usually termed as a lawbreaker/offender.

Accordingly, offenders who are convicted end up as prisoners in confined institutions called prison/jail. A Prisoner, in layman terms, is a person who is serving time in prison. The more technical version of the same would translate as “any person who has been apprehended by a law-enforcement officer and is in custody, regardless of whether the person has yet been put in prison.”

However, the law provides for certain provisions where such prisoners shall enjoy the benefit of serving only a fraction of their actual punishment and avail the option of a premature release from the appropriate government.

However, the same is subjected to a profusion of legal and moral impediments. In this article, we shall try to cover the subject of how and when a prisoner may be released early, and the various laws associated with it.

Legal provisions

Constitution of India

The Constitution of India, which acts as the parens patriaeis for its citizens, confers myriad powers and duties of government institutions and its agnate organs. Powers of president as well as the State Governor is also one of them.

Article 72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases. This article of the constitution confers the President of India the power to grant pardon, reprieve, respite, or remission of punishment awarded to convicts, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases, inter alia, where the punishment is for an offence against a law relating to a matter to which the executive power of the Union extends.

The power is absolute and cannot be limited in scope by statutory provisions. It may be limited, though, by judicial review, in case of arbitrary decision-making.

Article 161. Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases. The governor of a state has similar powers under Article 161 of the Constitution relating to a matter to which executive power of the state extends.

Indian Penal Code, 1860

Any person who violated the law can be subjected to various penalties, namely: death penalty, life imprisonment, rigorous imprisonment, simple imprisonment, forfeiture of property and imposition of fine, within the jurisdictional limits of India.

A person who has been awarded such imprisonment by a judicial body of competent authority, can also be subjected to premature release as well under various provisions of distinct statutes.

Section 53 of the Indian Penal Code, 1860 (hereinafter as IPC) prescribes imprisonment as a form of punishment to which offenders are liable for. There are generally three categories of imprisonment that are awarded by the courts to such offenders. These are: –

• life imprisonment,
• rigorous imprisonment (i.e., with hard labour)
• ‘simple’ imprisonment.

The Supreme Court, in the landmark cases of Naib Singh v. State of Punjab^[1]and Gopal Vinayak Godse v. State of Maharashtra^[2],has held that the term ‘imprisonment for life’ would mean “rigorous imprisonment for life” and not “simple imprisonment for life”. However, an important question that remains to be discussed, is whether a ‘life imprisonment’ shall mean an imprisonment for the remaining period of convict’s natural life, or for a definite period left at the mercy of authorities.

Under the IPC, Section 55 provides for “Commutation of sentence of imprisonment of life”, where “in every case for which a person has been sentenced for life imprisonment, the appropriate government may, without the consent of the offender, commute the punishment for imprisonment of either description for a period not exceeding fourteen years.”

Under Section 57 of the Code, “Fractions of terms of punishment” has been provided, for the purposes of calculating fractions, where imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years.

However, it has been well settled by the Supreme Court in landmark cases of Arjun Jadav v. State of West Bengal^[3] and Zahid Hussein v. State of West Bengal^[4], that life imprisonment shall mean imprisonment for the remaining period of the prisoner’s natural life, which is in direct contradiction of the provisions of the Code.

Code of Criminal Procedure, 1973

Code of Criminal Procedure (hereinafter as CrP.C.) is the cardinal legislation on procedure governing administration of substantive criminal law in India. It deals with various facets of Indian legal machinery and has been the dominant statute for confronting issues related to criminal matters.

A fraction of such matters usually either end up with the accused being sent to jail as punishment imposed upon him. However, the Code also provides with various provisions to do away with such punishments. The Power of appropriate Government to suspend, remit or commute sentences has been laid out in Sections 432 and 433 of CrP.C.

Part E of Chapter XXXII under CrP.C. deals with Suspension, Remission and Commutation of Sentences.

Section 432. Power to suspend or remit sentences. – Under this section, the appropriate Government has the power to suspend the execution of sentence or remit the whole or any part of the punishment. An application has to be made out to the appropriate Government for such suspension or remission of the sentence.

Upon non-fulfilment of any condition, the appropriate Government shall hold the absolute right to suspend such suspension or remission. One of such conditions is the consent of the prisoner in whose favor the punishment is suspended or remitted. It is the appropriate Government which can issue directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with.

Section 433. Power to commute sentence. – Under this section, the appropriate Government has the power to commute any sentence of death, sentence of imprisonment for life, sentence of rigorous imprisonment and/or any sentence of simple imprisonment.

However, life imprisonment is subjected to Statutory Powers of Remission. If punishment is given with the executive process, then remission can be premature release in a sentence of life imprisonment. Because of the Power of Remission Act punishment which is decided by the judiciary has the very serious. It can disturb the constitutional balance as well as separation of powers.

The Prisoners Act, 1900

Part VIII of the act deals with Discharge Of Prisoners which provides for: –

Section 33. Release, on recognizance, by order of High Court, of prisoner recommended for pardon. – Under this section, an appropriate High Court may, in any case in which it has recommended to Government the granting of a free pardon to any prisoner, permit him to be at liberty on his own recognizance.

The National Security Guard Act, 1986

Section 99. Release of lunatic accused. – Under this section, any person who is in custody under sub-section (4) of section 96, or under detention under sub-section (5) of that section either on the report of a medical office, or has been issued a certificate by certified officer or authority where such person may be released without danger of his doing injury to himself or to any other person, the Central Government may order that such person be released or detained in custody, or transferred to a public lunatic asylum if he has not already been sent to such an asylum.

Section 124. Pardon and remission. – Under this section, any person who has been subject is to this Act, and shall pardoned or remitted by the prescribed officer:

• pardon the person or remit the whole or any part of the punishment awarded; or
• mitigate the punishment awarded.
• commute such punishment for any less punishment or punishments.
• the person on parole.

Section 126. Suspension of sentence of imprisonment. – Under this section, a person who has been sentences to imprisonment by the appropriate officer or any other person so empowered, may suspend the sentence whether or not the offender has already been committed to prison custody. Powers conferred under this section may be exercised in the case of any such sentence which has been confirmed, reduced, or commuted.

Section 128. Release on suspension. – Under this section, where a sentence is suspended under section 126, the offender shall forthwith be released from custody.

Section 131. Reconsideration of case after suspension

• Where a sentence has been suspended, the case may at any time, and shall at intervals of not more than four months, be reconsidered by the authority or officer specified in section 126, or by any officer not below the rank of a Deputy Inspector-General duly authorised by the authority or officer specified in section 126.
• Where on such reconsideration by the officer so authorised, it appears to him that the conduct of the offender since his conviction has been such as to justify a remission of the sentence, he shall refer the matter to the authority or officer specified in section 126.

Delhi Prison Rules, 2018

Chapter-XX of the act talks about Premature Release, wherein the eligibility for such premature release has been provided for.

Rule 1251. This rule talks about convicted prisoners, whether male or female, who are undergoing sentence of life imprisonment and who are covered by the provisions of Section 433A Cr.P.C, shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment period i.e., without the remissions.

Although, completion of 14 years in prison by itself would not entitle a convict to automatic release from the prison. The Sentence Review Board shall have the discretion to recommend releasing a convict, only after considering the circumstances and other relevant factors like:-

• Whether the convict has lost his potential for committing crime considering his overall conduct in Jail during the 14-year incarceration.
• The possibility of reclaiming the convict as a useful member of the society and
• Socio-Economic condition of the Convict’s family.

Rule 1252. This rule talks about certain categories of convicted prisoners which have been mentioned herein and are undergoing life sentence, shall be entitled to be considered for premature release only after undergoing imprisonment for a period of 20 years, including remissions but not less than 14 years of actual imprisonment period.

Rule 1253. This rule talks about all the other convicted male prisoners , who are not covered by Section 433A of Code, and are undergoing the sentence of life imprisonment, would be entitled to be considered for premature release after they have served at least 14 years of imprisonment period, which shall be inclusive of remission but only after completion of 10 years actual imprisonment period i.e., without remissions.

Rule 1254. This rule talks about the female prisoners who are not covered by Section 433A Cr.P.C. and are undergoing the sentence of life imprisonment, would be entitled to be considered for premature release after they have served at least 10 years of imprisonment period, which is inclusive of remissions, but only after completion of 7 years actual imprisonment period, i.e., without remissions.

Rule 1255. This rule talks about cases relating to premature release of persons undergoing life imprisonment, before the completion of 14 years of actual imprisonment period, on ground of terminal illness or old age etc. may be dealt with under the provisions of Article 72 of the Constitution of India.

Case laws

• Bhim Singh v. Union of India^[5]

Held: In this case, the Jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge was directed by the apex court to hold at least one sitting in a week in each jail/prison for two months for the purposes of lawful release of undertrial prisoners after expiry of their respective time prescriptions, for the effective implementation of Section 436-A of the CrP.C. Further directions were also issued by the court:

To identify undertrial prisoners who completed either half or full term of imprisonment for their alleged offence and pass appropriate order in jail itself for their release

Directions were also issued for submission of status report of such sittings to Secretary General of Supreme Court so as to facilitate compliance.

Jail Superintendents were directed to provide all necessary facilities for holding the court sitting by the above judicial officers.

Release directions relating to Pakistani nationals were also issued and ordered by the apex court.

• Arjun Jadav v. State of W.B.^[6]

Held: The term ‘Life Imprisonment’ under the Penal Code was reiterated by the apex court, where it shall “mean life imprisonment for entire life of convict. Thus, even if petitioner’s mercy petition was rejected twice and even if State Government did not consider petitioner’s case in spite of recommendations of jail authorities for his premature release, no relief can be granted under Article 32 by Supreme Court”

• State of Gujarat v. Lal Singh^[7]

Held: “Impugned order that was passed by High Court directing state Government concerned to release respondent convict on parole for a period of three months, was silent as to said considerations laid down by Constitution Bench in Sunil Fulchand Shah case, and in fact, an abrupt direction had been issued to release respondent on parole, held, such grant of parole was not justified.” It was further held that the concerned authorities must consider the liberty to grant representation of convicts as expeditiously as possible in accordance with law and guidelines framed for premature release.

• State of Haryana v. Jagdish^[8]

Held: “Right of convict is limited to the extent that his case can be considered in accordance with the relevant rules, etc. He cannot claim premature release as a matter of right. Also, state while exercising power of remission should construe any available benefit liberally in favour of convict. In cases where a more liberal policy is applicable on date of consideration of case of “lifer” for premature release, he should be given benefit thereof.”

• Laxman Naskar v. Union of India^[9]

Held: “Though there is no right to be prematurely released but when Government has framed rules, scheme or guidelines, in that belief prisoner has right to have his case put up before prison authorities for considering the same in exercise of power under Article 161 in accordance with those rules, schemes or guidelines.”

• State of Punjab v. Gurmej Singh^[10]

Held: It was held that the question of premature release is considered based on the report of the officers concerned as well as the material facts and circumstances prevailing at the relevant time of release. There cannot be any presumption about release or non-release of a prisoner. It was further held that a person cannot be deprived of his right of being considered for premature release.

• Rajan v. State of T.N.^[11]

Held: It was held that the power to grant commutation or remission of sentence vests exclusively in the hands of appropriate Government. Courts cannot usurp said power of the Government. The grant or non-grant of remission is prerogative to be exercised by competent authority and it is not for court to supplant its view in such cases. Premature release is not a matter of privilege but is power coupled with duty conferred on appropriate Government in terms of Ss. 432 and 433 of CrP.C.

• State of Tamil Nadu v. P. Veera Bhaarathi^[12]

Held: It was argued whether the respondent was entitled to be considered for premature/early release on completion of his present prison term of about 16 yrs. In this case, the respondent was convicted and sentenced to life imprisonment under S. 302 IPC and was also convicted and sentenced to minor imprisonment i.e., 7 yrs. of imprisonment under an ineligible section i.e., s. 376 IPC.

After having regard to the relevant Rule and the clarification issued by the Inspector General of Prisons, and also taking view that respondent having served out the sentence imposed for the offence punishable under S. 376 IPC (i.e. ineligible section), it would be justified for the Respondent to be entitled to consideration of his case by Advisory Board for premature/early release.

• Zaid Hussein v. State of West Bengal^[13]

Held: It was reiterated in this case that the guidelines are exclusively framed by the State Government for Review Board for considering prayers for premature release. It was also held on facts of the case, that the guidelines were not properly followed by the Board in rejecting cases of the petitioner convicts. Hence, the matter was remitted for fresh decision by the Board.

• State v. H. Nilofer Nisha^[14]

Held: “It is not for the writ court to decide whether a prisoner is entitled to parole or remission and these matters lie squarely in the domain of the Government. The grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations. The court cannot exercise these powers though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rules.”

• Ashfaq v. State of Rajasthan^[15]

Held: In this case, the court discussed various aspects relating to Parole/Remission/Premature release/Furlough. The meaning and purpose of granting parole or furlough was discussed upon, and a distinction between parole and furlough was also provided for. It was also noted as to when parole or furlough should not be granted/given to any prisoner.

The court also gave its view on whether there can be any presumption that a person who is convicted of serious or heinous crime (such as for terrorism) is to be, ipso facto, treated as a hardened criminal, and mere nature of offence committed by him should be a factor to deny parole outrightly or not. Another issue taken up by the court was that when can application for parole be moved by the concerned party.

Conclusion

The practice of condemning and confining offenders within the four walls of prison has always been the bone of contention between the different schools of ‘Theories of Punishment’. The preventive theory mainly deals with prevention of crime by disabling and detaching the criminal from the society altogether. However, studies conducted by NHRC show a stark contrast over the efficacy of these so-called houses of correction.

In the wake of COVID-19 pandemic, the National Legal Services Authority (NALSA) had to intervene, where it moved to the Supreme Court to decongest the jails facilities, where an estimate of over 42,000 undertrials prisoners were released, and an additional estimated 16,000 convicts were freed on parole. However, this is deplorable in the sense that such measures had to be taken in riposte to the haste cause by a global pandemic.

As per prison statistics compiled by the NCRB, between the years 2008 to 2018, the prisons in India had an average occupancy rate of 117 percent. In 2018 alone, there were 4,66,084 prisoners detained in prisons all over India, while the holding capacity of prisons was an estimate of only 3,96,223. Out of Which 3,23,537 were under-trial prisoners, 1,39,488 were convicts, and 2384 were detenues. These statistics show the derelict of our prison systems, and the debilitated machinery which is managing it.

Being well-aware of the fact that instruments of law relating to ‘suspension’, ‘remission’, ‘commutation’, ‘parole’ and/or ‘pardon’, are not a right but a privilege upon the good behaviour observed or the amount of time served, and cater to the human rights of the prisoners to reinstate themselves back into the social environment, and giving a another opportunity to rehabilitate, is what can bring the change in them and in the society, instead of merely overcrowding the prisons and ignoring the humane approach to this socio-legal plight.

References

• Sentence Review Board recommends release of Manu Sharma
• A Prisoner’s Right To Remission In India: An Unending Conundrum
• Over 42,000 undertrials released to unclog prisons: NALSA report
• 21 states yet to decide on over 1,600 prisoner pleas for premature release — NALSA tells SC
• Norms for premature release need uniformity
• Decongestion of Jails during COVID-19: Realisation of a Pending Reform
• Alleged Arbitrariness in Premature Release of Prisoners
• How and when a convicted prisoner can be granted premature release

1. Naib Singh v. State of Punjab, (1983) 2 SCC 454 ↑
2. Gopal Vinayak Godse v. State of Maharashtra (1961) 3 SCR 440 : AIR 1961 SC 600 : 1961 (1) Cri LJ 740 ↑
3. Arjun Jadav v. State of West Bengal, (2014) 15 SCC 426 ↑
4. Zahid Hussein v. State of West Bengal, (2001) 3 SCC 750 ↑
5. Bhim Singh v. Union of India (2015) 13 SCC 605 : (2016) 1 SCC (Cri) 663 : 2014 SCC OnLine SC 682 ↑
6. Arjun Jadav v. State of W.B., (2014) 15 SCC 426 : 2014 SCC OnLine 522 : (2014) 142 AIC 258 (SC) ↑
7. State of Gujarat v. Lal Singh, (2016) 8 SCC 370 : AIR 2016 SC 3197 ↑
8. State of Haryana v. Jagdish, (2010) 4 SCC 216 : AIR 2010 SC 1690 ↑
9. Laxman Naskar v. Union of India, (2000) 2 SCC 595 : AIR 2000 SC 986 ↑
10. State of Punjab v. Gurmej Singh, (2002) 6 SCC 663 : AIR 2002 Sc 2811 ↑
11. Rajan v. State of T.N., (2019) 14 SCC 114 : AIR 2019 SC 2101 ↑
12. State of Tamil Nadu v. P. Veera Bhaarathi, (2016) 8 SCC 370 : AIR 2016 SC 3197 ↑
13. Zaid Hussein v. State of West Bengal, (2001) 3 SCC 750 : AIR 2001 SC 1312 ↑
14. State v. H. Nilofer Nisha, (2020) 14 SCC 161 ↑
15. Ashfaq v. State of Rajasthan, (2017) 15 SCC 55 ↑