How and when a convicted prisoner can be granted premature release

As the possibility of premature release for Jessica Lall murder convict heads for review, a look at the circumstances under which it is possible

Written by Ananthakrishnan G | New Delhi | Published: April 30, 2018 12:28:46 am
How and when a convicted prisoner can be granted premature release Manu Sharma. (Express photo by Renuka Puri/File)

Last week, Sabrina Lall, sister of murdered model Jessica Lall, wrote to Tihar Jail that she has no objection to the release of Siddhartha Vashishta, also known as Manu Sharma, who is serving a life term for the murder. Manu Sharma became eligible for consideration for remission after completing 14 years in prison, and a Sentence Review Board has initiated moves to take up his case along with those of other prisoners.

Except in heinous crimes such as rape-and-murder, prisoners who have spent not less than 14 years in jail can be granted premature release by exercising the powers specified under the Constitution and laws.

The laws

Section 432(1) of CrPC vests state governments with the power to suspend or remit the whole or any part of the sentence of a convict. Section 432(2) says that whenever an application is made for remission, the appropriate government “may” seek the opinion of the presiding judge of the court that had sentenced the convict or confirmed the conviction, on whether the request should be granted. Section 433 deals with the power of governments to commute sentences while 433A lays down the restriction on exercise of this power.

Section 435 of CrPC describes the power of state governments to grant remission in certain cases. It says that for offences investigated by any agency constituted under the Delhi Police Special Establishment Act, 1946, or empowered to investigate any offence under any central Act, in cases involving destruction of property of the central government and where the convict is a central government servant and was acting in discharge of his official duties, the state must exercise its powers only after “consultation” with the Centre.

In the Constitution, Article 72 deals with the power of the President to grant pardons and to suspend, remit or commute sentences in certain cases. The President can exercise the power in respect of persons convicted by a court martial, where the conviction is for violating any law to which the executive power of the Union extends and for offences which carry the death penalty.

Article 161 deals with the power of a Governor to grant pardons and to suspend, remit or commute sentences in certain cases. The Governor of a state shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.

State Sentence Review Boards

Before 1999, states followed different standards for remitting and suspending sentences. Taking cognisance of this, the National Human Rights Commission appointed a committee to look into it. The committee recommended constitution of State Sentence Review Boards to take up cases of long-serving prisoners who have applied for release. The commission issued certain broad guidelines in November 1999 to ensure uniformity in the matter. Some of these were modified later and another circular was issued in September 2003. Various states constituted Sentence Review Boards which consider prisoners’ application for remission.

Judicial pronouncements

The law and procedure relating to premature release of prisoners were discussed elaborately by the Supreme Court in Sangeet and Others vs State of Haryana (2013) and Union of India vs V Sriharan @ Murugan and Others (2016).

Sangeet and Others vs State of Haryana: The Supreme Court interpreted Section 432 and affirmed that the requirement that the government should seek the opinion of the judge who had convicted or confirmed the sentence was mandatory. It said that “before actually exercising the power of remission under Section 432 CrPC the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming court. Remissions can, therefore, be given only a case-by-case basis and not in a wholesale manner.”

Union of India vs V Sriharan @ Murugan and Others: The case arose in the context of the Centre challenging the then J Jayalalithaa government’s decision to remit the life sentence imposed on seven of those convicted in the Rajiv Gandhi assassination case. A constitution bench held that an “appropriate government” cannot initiate the process for remission suo motu but only on application by the convict. In reiterated what it had said in Sangeet vs State of Haryana and Others, and ruled “on such an application being made, the appropriate government is required to approach the Presiding Judge of the court before or by which the conviction was made or confirmed to opine (with reasons) whether the application should be granted or refused”.

The court also held that for the purpose of Section 435, the word “consultation” must be read as “concurrence” of the central government.

Exceptions

In Union of India vs V Sriharan, the SC also said the power of remission will not be available where life sentence has been awarded specifying that (a) the convict shall undergo life sentence till the end of his life without remission or commutation, and (b) the convict shall not be released by granting remission or commutation till he completes a fixed term such as 20 years or 25 years or like.

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