The Union Home Ministry issued a set of guidelines to the States and the Union Territories on the grant of special remission to prisoners to commemorate the 75th year of Independence.

What is the news?

• The decision comes as part of the Azadi Ka Amrit Mahotsav celebrations.
• The special remission would be granted to a certain category of prisoners, and they would be released in three phases.

What is Remission?

• The suspension is the stay or postponement of the execution of the sentence.
• In remission, the duration of the sentence is reduced, without changing the nature of the sentence.
• In remission, the nature of the sentence is remained untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone.
• The effect of the remission is that the prisoner is given a certain date on which he shall be released and the eyes of the law he would be a free man.
• However, in case of breach of any of the condition of remission, it will be cancelled and the offender has to serve the entire term for which he was originally sentenced.

Constitutional provisions for Remission

• ‘Prisons’ is a State subject under the State List of the Seventh Schedule of the Constitution.
• Indian laws provide pardoning power sourcing from statuary and constitutional authorities.
• By virtue of Article 72 and 161 of the Constitution of India, the President and Governor can grant pardon, to suspend, remit or commute a sentences passed by the courts.

What are the new norms?

The prisoners who would qualify for premature release under the scheme are:

• Women and transgender convicts of ages 50 and above
• Male convicts of 60 and above who have completed 50% of their total sentence period without counting the period of general remission earned
• Physically challenged or disabled convicts with 70% disability and more who have completed 50% of their total sentence period
• Terminally ill convicts
• Convicted prisoners who have completed two-thirds (66%) of their total sentence
• Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine
• Persons who committed an offence at a young age (18-21) and with no other criminal involvement or case against them and who have completed 50% of their sentence period would also be eligible for the remission

Exceptions to these norms

Following persons would not be eligible for the grant of special remission:

• Persons convicted with death sentence or where death sentence has been commuted to life imprisonment or persons convicted for an offence for which punishment of death has been specified as one of the punishments
• Persons convicted with sentence of life imprisonment
• Convicts involved in terrorist activities or persons convicted under the Terrorist and Disruptive (Prevention) Act, 1985, Prevention of Terrorist Act, 2002, Unlawful Activities (Prevention) Act, 1967, Explosives Act, 1908, National Security Act, 1982, Official Secrets Act, 1923, and Anti-Hijacking Act, 2016

Back2Basics: Pardoning powers in India

• Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
• A similar and parallel power vests in the governors of each state under Article 161.

1. President

1. Article 72 says that the president 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.
2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning which are mandated by law.

• Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
• Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
• Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
• Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
• Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

Cases as specified by art. 72

• in all cases where the punishment or sentence is by a court-martial;
• in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
• in all cases where the sentence is a sentence of death.

1. Governor

• Similarly, as per article 161: Governor of a State has 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.
• It must be relating to a matter to which the executive power of the state extends.
• Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

Nature of the Pardoning Power

• The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
• The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
• This has not been discussed by the constitution but is the practical truth.
• Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
• But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
• The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

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