Remission of long jail terms: India
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Contents |
Guiding principles
Severity of offence should not be only guiding facto:r SC
August 28, 2023: The Times of India
NEW DELHI: The Supreme Court has held that governments should not be guided only by the severity of the offence committed by a convict to deny him premature release and the opinion of the trial court or the police based on judicial record of the case could not be the sole ground to reject a remission plea.
While deciding the petition filed by a convict who had spent 24 years in jail in a triple murder case and whose remission plea was rejected following a negative opinion from the trial judge who opposed his premature release on the ground that the offence committed by him was heinous, the apex court said the person was sentenced for the crime and had spent years in jail, and the decision on remission should not be taken on the basis of the same judicial record. It added that the remission policy should be guided by the "reformative" concept of justice and not be "retributive" and the focus should be on the "criminal” and not the “crime".
A bench of Justices S Ravindra Bhat and Prashant Kumar Mishra said a remission board should not entirely rely on the presiding judge or the police report and should take a view after getting a report prepared by a qualified psychologist after interacting/interviewing the convict.
“All this is not to say that the presiding judge’s view is only one of the factors that has no real weight, but instead, that if the presiding judge’s report is only reflective of the facts and circumstances that led to the conclusion of the convict’s guilt, and is merely a reiteration of those circumstances available to the judge at the time of sentencing, then the appropriate government should attach weight to this finding, accordingly. Such a report cannot be relied on as carrying predominance, if it focuses on the crime, with little or no attention to the criminal. The appropriate government should take a holistic view of all the opinions received (in terms of the relevant rules), including the judicial view of the presiding judge of the concerned court, keeping in mind the purpose and objective of remission," the bench said.
"In this court’s considered view, overemphasis on the presiding judge’s opinion and complete disregard of comments of other authorities, while arriving at its conclusion, would render the appropriate government’s decision on a remission application unsustainable. The discretion that the executive is empowered with in executing a sentence would be denuded of its content if the presiding judge’s view — which is formed in all likelihood, largely (if not solely) on the basis of the judicial record — is mechanically followed by the concerned authority, " the bench added.
‘Decent behaviour’ condition removed by SC
SC nixes ‘behave decently’ rider for remission
New Delhi: Observing that the term ‘decent’ is not defined in any law and is subjective, open to different interpretations, SC stated that the condition to “behave decently” could not be imposed on a convict when granting remission as such a condition is vague and open to misuse, reports Amit Anand Choudhary.
A bench of Justices Abhay S Oka and Augustine George Masih on Tuesday made the remark while quashing Gujarat govt’s decision to impose a condition on a convict to behave decently for two years after coming out of jail and any violation of it could result in cancellation of remission. “As the term ‘decency’ is not defined in the CrPC or any other cognate legislation... such a condition while granting remission becomes too subjective. Putting such a vague condition... will give a tool in the hands of the executive to cancel the remission at its whims and fancies.”
Powers of the government
Remission of sentence is the government’s function not court’s: SC, 2023
January 25, 2023: The Times of India
New Delhi : The Supreme Court turned down the remission plea of a life convict who has spent more than 15 years in jail and said that it was a function of the government. Abench of CJI D YChandrachud and Justices P SNarasimha and J B Pardiwala asked the Gujarat government to reconsider the convict’s plea for premature release earlier rejected by state.
Though one of the co-accused was released prematurely in 2017, the petitioner’s plea for remission was rejected by the government as he had jumped bail and absconded for five years when granted bail for three weeks in 2005. He was awarded life sentence and has spent over 15 years in jail. Rejecting his plea for remission, the bench said, “We are of the considered view that the state government shall freshly consider the application. Since the grant of premature release is an executive function related to Article 162 of the Constitution, we are of the view that it is appropriate for the government to re-evaluate the matter by bearing in mind all the relevant circumstances”.
SC limits powers of state governments
The Times of India, Dec 03 2015
Amit Anand Choudhary & Dhananjay Mahapatra
SC limits states' power to remit long jail terms
The Supreme Court put a question mark on attempts by NGOs and social activists for release of hardened criminals after 14 years in jail, popularly believed to be the span of a lifeterm, and said the states couldn't release a convict if courts awarded a term much in excess of that period while considering the nature of the crime and its perpetrators. A Constitution bench of Chief Justice H L Dattu and Justices F M I Kalifulla, P C Ghose, A M Sapre and U U Lalit ruled by 3-2 majority that taking into account the heinousness of the offence and nature of the crime, if courts awarded a sentence for a period beyond 14 years, states could not remit that sentence. While Justices Dattu, Kalifulla and Ghose gave the above ruling, the other two judges said even when the courts could award jail for a specified period like 25 years, it would not debar the states from exercising their power of remission after the convict served 14 years in jail. The majority judgment, authored by Justice Kalifulla, took a dig at the assiduous attempts by NGOs and social activists in pitching for early release of even hardened criminals. It said the courts have the onerous duty of balancing human rights of convicts with the security of society , which “tday stood “endangered by antisocial elements enjoying political patronage“. “Today we find that criminals are let loose endangering the lives of innocent people in our country . Such hardened criminals are in the good books of several powerful men of ill-gotten wealth and power mongers, for whom they act as paid assassins. Lawlessness is the order of the day . It is the hard reality that the state machinery is not able to protect or guarantee the life and liberty of the common man,“ it said.
Leniency in such cases would lead to chaos and erosion of rule of law, the bench said and upheld the principle laid down by the SC in ther Swamy Shradhanand case, in which it had commuted his death sentence to life but ordered the authorities to keep him in jail till death.
The court said law-abiding citizens were cowering with criminals having a field day. It took a dig at the devils' advocates and said: “Even those who propagate for lessening the gravity of imposition of severe punishment are unmindful of such consequences and are only keen to indulge in the propagation of rescuing the convicts from being meted out appropriate punishment.“
“We are at a loss to understand for what reason or purpose such propagation is carried on and what benefit the society at large is going to derive,“ the court said.
The SC also said the lack of judges considerably delays trial, and the criminals take undue advantage of this.“Disposal of cases by courts is getting delayed mainly be cause of a disproportionate number of judges and lack of proper infrastructure for judiciary ,“ it said.
Citing 2009 statistics, it said that against a minimum of 50 judges per million, as is the set norm, India had just eight, leading to huge pendency and enormous delay .“Such enormous delay in disposal of cases comes handy for criminals who indulge in more of such heinous crimes and in that process, the common man suffers,“ it said. “Keeping the above hard reality in mind, when we examine the issue, it has now come to stay that when in exceptional cases, death penalty is altered as life sentence, that would only mean rest of one's life span,“ the bench said.
“It can be said without any scope of controversy that when by way of a judicial decision, after a detailed analysis, having regard to the proportionality of the crime committed, it is decided that the offender deserves to be punished with the sentence of life imprisonment till the end of his life or for a specific period of 20 years, 30 years or 40 years, such a conclusion should survive without any interruption.
“It should be held that there will be every justification and authority for the court to ensure in the interest of the public and society that such a person should undergo imprisonment for a specified period even beyond 14 years without any scope for remission,“ the bench said.
UP’s age rider for remission illegal: SC
February 3, 2022: The Times of India
New Delhi: Holding the UP government’s policy of considering remission of sentence only after a prisoner attains 60 years of age as prima facie illegal, the Supreme Court has directed the state to re-examine and amend it. A bench of Justices Sanjay Kishan Kaul and MM Sundresh passed the order while granting bail to a prisoner who has already spent over 28 years in jail but whose remission plea was rejected due to the age bar. He was giv-
en life imprisonment by trial court in a murder case in 2004 but his appeal has not been decided by the Allahabad HC in the last 17 years. He approached SC after his remission pleas were rejected by the state government multiple times.
The bench noted that as per the policy, convicts are considered for remission only after completing the age of 60 years and having undergone custody of 20 years without remission and 25 years with remission. “We are not required to go into this aspect in view of the aforesaid (policy) but would like to express a great doubt on the validity of this clause prescribing a minimum age of 60 years which would imply that a young offender of 20 years will have to serve 40 years before his case for remission can be considered. Though we are not required to test this aspect, we call upon the state government to re-examine this part of the policy which prima fa- cie doesn’t seem to be sustainable, more so in view of the illustration we have noted above and thus, we call upon the state government to take a fresh look at the insertion of this clause. The needful be done within four months from Wednesday,” the bench said. “We issue a dual direction i. e. of consideration of the case of the petitioner for remission within three months and for consideration of the amendment to the policy of 2021 within a period of four months from Wednesday,” it said.
