6 min readJan 12, 2024 09:03 AM IST
First published on: Jan 10, 2024 at 07:24 PM IST
On January 8, 2024, a two-judge bench of the Supreme Court quashed the remission granted to 11 convicts in the Bilkis Bano case. The Court held that the government of Gujarat illegally decided the remission application. Instead, as per established law, the government of the state where a convict is tried and sentenced holds this power, making the Maharashtra government the appropriate authority in this case. Notably, the bench made a scathing remark against the Gujarat government for “usurpation of power”. In addition to reaffirming the role of the Supreme Court as a guardian of the rule of law, this case must act as a springboard to reflect on deeper questions about the state remission policies in India that the Court did not have a chance to consider. Clear and transparent remission procedures along with appropriate substantive considerations will also help prevent the kind of misuse we saw in Bilkis Bano’s case.
Remission is a reward earned by prisoners in “days” for their good conduct, participation in activities and work done inside prison. It does not change the nature of punishment. Rather, it offers an opportunity for prisoners to engage in reformative and rehabilitative activities in the hope of getting out before the actual term of their sentence imposed by the court ends. In essence, it emanates from the rehabilitative goal of imprisonment. The total number of days earned in remission is deducted from the sentence, making prisoners eligible for early or premature release. For example, a person sentenced to 10 years of imprisonment with one year earned in remission can potentially be released after serving nine years of their original sentence.
Applying remission policies to persons convicted of petty offences like theft, punishable with a determinate period of imprisonment (up to three years) is relatively straightforward. However, the application of remission policies to persons convicted of serious crimes, such as rape, and those sentenced to life imprisonment (“lifers”), as is the case for the 11 convicts in Bilkis Bano’s case, entails multiple challenges.
While a life sentence essentially means imprisonment for the whole of a convict’s life, the law allows for lifers to be considered for remission once they have served a minimum term of 14 years. However, this is uniform across neither offences nor states since “prisons” and “persons detained therein” are listed as a state subject in List II of the Seventh Schedule of the Constitution. There are offence-based exceptions for lifers convicted of heinous offences such as rape and murder. In most states, offenders convicted for heinous offences have to undergo longer minimum periods of imprisonment to be eligible for consideration for early release than other lifers. In fact, in some states, these categories of prisoners are barred from remission by virtue of the crime category. For instance, in Maharashtra, a lifer convicted of a communal crime or gang rape will have to serve for at least 28 years before being eligible to apply for remission, whereas, in Gujarat, such a person is excluded from the ambit of remission policies entirely.
The impact of the severity of the offence is not only reflected in the minimum imprisonment limits but also in how remission is earned. States generally grant ordinary remission of two days per month for good behaviour or performance of prison duties and special remission of longer durations for any special service rendered in prison such as acts of bravery. In states like Goa, Mizoram and Odisha, murder convicts are excluded from earning ordinary remission. These offence-based exclusions are also being extended to other forms of leave provisions such as parole and furlough — Delhi (in 2010) and Jammu and Kashmir (in 2020).
An application of remission is assessed by a Sentence Review Board. The Supreme Court has identified factors that should be considered while deciding a remission application, including the impact of the crime, chances and potential of reoffending, the purpose of continued imprisonment of the convict and the socio-economic conditions of their family. As these factors indicate, the consideration for each prisoner has to be individualised.
Remission policies across states raise both procedural and normative questions. Procedural questions are about the constitution of the sentence review boards and the decision-making process — whether remission applications are fairly considered in line with the Supreme Court’s guidelines and the rehabilitative and reformation goal of prisons. More importantly, offence-based restrictions to apply for remission and longer terms of imprisonment before becoming eligible for certain kinds of offenders raise a normative question about prisons as rehabilitative spaces. It is, of course, an entirely different yet crucial question to ask whether our prisons in their current form have the capacity to do this. With massive overcrowding, securitisation, overburdened prison personnel, etc., the crisis in our prison system needs urgent transformation.
The presence of early release provisions such as remission, parole, and furlough serve as a ray of hope for prisoners. These mechanisms provide imprisoned individuals with something to look forward to and play a crucial role in their process of reformation. They offer prisoners a chance for rehabilitation, reintegration into society, and the opportunity to rebuild their lives. Lifers equally deserve this chance at reform through policies that help impose definite durations on the otherwise indeterminate life imprisonment sentences as it is impossible to ascertain when a prisoner will die. In a penal system where remission is an indispensable opportunity that facilitates reform, exclusionary policies need to be interrogated.
The writer is Associate (Sentencing) at Project 39A, National Law University, Delhi. Views are personal
With massive overcrowding, securitisation, overburdened prison personnel, etc., the crisis in our prison system needs urgent transformation. (Express file photo by Anil Sharma) 
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