The judiciary’s scepticism of the reformative potential of a convict has led to the state’s indifference to his or her remission pleas, writes NIKHIL PARIKSHIT.
RECENT orders passed by the Supreme Court in Sonadhar vs. State of Chhattisgarh, offer a glimmer of hope for convicts languishing in jails for a considerable period of time.
The orders passed in this case reveal the institutional apathy of the competent authorities in States towards remission prayers made by convicts.
The Supreme Court in this case took cognizance of the larger issue of remission pleas of convicts when it noticed (based on a report by National Legal Services Authority (NALSA)) that in Chhattisgarh, there were 1,649 remission applications of convicts which remained pending consideration. The apex court also noted that 432 prisoners had not applied for remission, possibly on account of the fact they were not aware of their rights. This prompted the Supreme Court to pass several directions towards streamlining the process of dealing with remission applications.
However, ensuring timely disposal of remission applications is only one of the steps to mitigate the consequences of the State’s apathy towards remission pleas. The manner in which these applications are dealt with by the State authorities has not received similar scrutiny by the court. Recent orders of the Supreme Court show that the approach of the executive towards remission pleas leaves much to be desired.
Also read: The Cruelty of Clemency: Mercy Petitions and the Abolitionist Discourse
Prevailing scepticism towards reformation
Russian novelist Fyodor Dostoevsky’s classic, “Crime and Punishment”, sheds great insight into what drives an individual to crime; it vividly portrays the inner moral conflict that a person undergoes before turning to crime.
Dostoevsky gives a human face to a criminal and viscerally creates a sense of empathy for a person who has committed the most unpardonable of acts – murder. This tour de force also effortlessly magnifies certain innate human qualities which are often not seen – repentance, resilience and finally reformation.
The book concludes in an optimistic tone with the protagonist being released after serving his sentence in Siberia and awaiting a new life. The final paragraph of Crime and Punishment is poignant:
“But that is the beginning of a new story—the story of the gradual renewal of a man, the story of his gradual regeneration, of his passing from one world into another, of his initiation into a new unknown life. That might be the subject of a new story, but our present story is ended.”
Unfortunately, Dostoevsky’s sense of optimism towards reformation does not find resonance in contemporary Indian society. The reformative theory in criminal law attracts strong reactions worldwide. In the Indian context, the possibility of reformation in a convict is viewed as impractical and also dangerous to society at large. In addition, there are also competing interests involved – the rights of the victim and the victim’s family for justice and closure vis-a-vis a convict’s claim to a second chance by way of remission or reduction of his sentence.
The Supreme Court, in its earlier decisions, has given greater weight to the former and has expressed scepticism over the latter, particularly if the offence in question is a heinous one; See the following words of Justice S.M. Fazl Ali in Maru Ram (1980) (endorsed by the Constitution Bench in Sriharan alias Murugan (2015)):
“It is true that there appears to be a modern trend of givi
ng punishment a colour of reformation so that stress may be laid on the reformation of the criminal rather than his confinement in jail which is an ideal objective. At the same time, it cannot be gainsaid that such an objective cannot be achieved without mustering the necessary facilities, the requisite education and the appropriate climate which must be created to foster a sense of repentance and penitence in a criminal so that he may undergo such a mental or psychological revolution that he realizes the consequences of playing with human lives. In the world of today and particularly in our country, this ideal is yet to be achieved and, in fact, with all our efforts it will take us a long time to reach this sacred goal….
The question, therefore, is — should the country take the risk of innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself. Valmikis are not born everyday and to expect that our present generation, with the prevailing social and economic environment, would produce Valmikis day after day is to hope for the impossible.” [emphasis supplied]
It would not to be presumptuous to suggest that the prevailing scepticism towards the idea of reformation is a factor that has influenced the entrenched institutional apathy towards remission pleas made by convicts.
Also read: Indian Criminal Justice System: Navigating The Three Rs Of Retribution, Reformation, And Rehabiliation
Power to grant remission
The power to grant remission or reduction of prison sentences under Indian law is a statutory recognition of the possibility of reformation in a convict. Society’s scepticism over this possibility cannot deter the State to turn a blind eye to this exceptional power it is entrusted with.
The State is enjoined with a duty to be progressive and promote a welfare state underpinned by the concept of justice and fairness; creating an environment conducive to reform in prisons and considering remission or commutation applications of convicts fairly and holistically is a facet of this overarching duty.
The power to grant remission flows from Articles 72 (President’s power to grant remission) and 161 (Governor’s power to grant remission) of the Constitution of India, Section 432 of the Code of Criminal Procedure (CrPC), and under the Prison Rules of a state. The procedure towards handling remission pleas under these provisions may vary slightly but they envisage a common purpose, that is, remission or reduction of the sentence of a convict.
The exercise of such powers is purely an executive act. It has been judicially held that the right to apply and invoke the powers under these provisions does not mean that the convict can claim the benefit of remission as a matter of right based on any arithmetical calculation. The convict only has a right to apply to the competent authority and have his plea considered in a “fair and reasonable manner”.
The decision as to whether remission is to be granted or not, is entirely left to discretion of the authorities concerned, which ought to be exercised in “a manner known to law”; Factors which govern the exercise of this power are the gravity of the offence and the possibility of the prisoner being “assimilated in society”. [see paras 259 and 281 of Supreme Court in Murugan]
In the context of life imprisonment, the threshold to apply for remission is onerous to say the least. It must be reiterated that under Indian criminal law there is no ambiguity whatsoever that the sentence of life imprisonment means imprisonment for the rest of the life or the remainder of the life of a convict.
The only ray of hope for a convict sentenced to life imprisonment is to apply for remission or commutation of his sentence, which gets activated, only after such convict has undergone 14 years of imprisonment (see Section 433A of CrPC).
This begs the question whether prolonged incarceration can ipso facto give rise to repentance and reformation in a convict? A prolonged sentence must also be viewed in the backdrop of a long and punishing legal process leading up to conviction by the trial court followed by an inordinately long appellate process. The onus squarely lies on the State to examine this question on a case to case basis and that too in a holistic manner. There is no one-size-fits-all approach towards this conundrum; however, the assessment of the readiness of a convict to be assimilated in society has to be holistic.
A step towards addressing this question is for the State to invest time and resources in carrying out periodic psychological evaluation of convicts, which is often not done by the states; there is little to suggest that such an exhaustive evaluation of convicts is carried out in prisons across India.
Also read: A Case for the Release of All Women Undertrial Prisoners
Callous approach towards remission applications
A disturbing practice that does not seem to abate is that remission applications made by convicts are being dealt with in a callous manner by the competent authorities in various states; remission applications are often rejected en masse in a single meeting of the competent authority of a state without any discernible reasons being furnished for such rejections; many of the applicants have been incarcerated beyond 14 years, yet their applications are rejected in a mechanical manner.
The Supreme Court in its recent erders passed in Shor vs. State of UP (2020), Munna vs. State of UP (2020), [email protected] vs. State of UP (2020) and Basudeb Sharma (2021) has expressed its disapproval over the perfunctory rejection of remission applications without any application of mind by the state authorities.
Most of the orders rejecting remission applications are not made available in the public domain; to add further insult to injury, the rejection orders are not even shared with the applicant or family members or the lawyers representing the applicant.
There are numerous instances wherein a convict has to invoke the jurisdiction of the Court (more often than not with the assistance of legal aid) to find out whether his prayer for remission has even been considered at all. When the Court calls upon the State to respond, it comes to light that the convict’s application was in fact rejected earlier, without his knowledge; making the entire process punishing.
Such an approach is dehumanising and goes against the very spirit of the provisions empowering the executive authorities to grant remission; it also disincentivizes reform among convicts.
In most cases, rejection orders are unintelligible and it becomes fairly evident that there has been no sociological or psychiatric appraisal of the convict or any proper assessment as to the effect of early release of a particular convict on the society before rejecting an application.
In essence, such a mechanical approach by the State towards a plea for remission reduces the statutory provisions to a dead letter and the process is thus an empty formality. It also betrays the mindset of the State that reformation in a convict is unachievable and that investing time and resources in bringing about any reformation is a futile exercise.
Blanket rejections of remission pleas woefully fall foul of the ‘fair and reasonable’ standard and clearly violate a convict’s right to a humane existence guaranteed under Article 21 of the Constitution.
The State has a responsibility to strive towards creating an environment for reform among inmates in prisons and thereafter examine remission applications on case to case basis with due application of mind and that too in a holistic manner. Not only will this approach mitigate the problem of congestion in prisons it will also be a progressive step towards giving meaning to a human life which has been condemned by society.
(Nikhil Parikshith is an Advocate-on-Record at the Supreme Court of India. The views expressed are personal.)