On December 2, 2015, the constitution bench of the Supreme Court revisited the powers of the state Government to grant remission, in Sriharan @Murugan Judgement. After invoking Section 432(2) of Cr.P.C. the Supreme Court added another layer to the already complex process of granting remission.
The process now requires the government to seek opinion of the sentencing court before granting remission. Due to this a considerable amount of delay occurs as the Remission board continues to adjourn its proceedings till it receives appropriate report from the sentencing court. The Murugan judgement has led to confusion among the trial court judges regarding their role in considering remission.
A recent Patna High Court’s order highlights this confusion.
RECENT PATNA HIGH COURT ORDER
In a recent case, a convict, whose premature release was recommended by the State Sentence Remission Board, did not secure his freedom immediately. His pending writ petition in the Patna High Court seeking premature release was considered as having virtually become infructuous by the State Government’s counsel. But the High Court bench comprising justices Navaniti Prasad Singh and Vikash Jain, thought otherwise, as the petitioner was not released till the date of hearing.
On February 21, when the case came up for hearing before Justice Navniti Prasad Singh stated in his order:
“Even though, the statutory body considered his continued detention to be impermissible, in law, he has not been released. The order of the recommendation of the Board is now over 25 days. Imagine the plight of a person who has come to know that his release has been ordered, but still he has not been released. We wonder what would be the reason for this delay. Has someone to move someone with some consideration again to expedite the matter. This is one facet.”
Justice Singh then recorded a disturbing phenomenon that there is no transparency whatsoever on how matters are to be referred to the State Sentence Remission Board. Mentioning an incident where main accused in a case was released under section 432 Cr.P.C. but others were kept back for several years thereafter, the order stated-“This clearly shows that there were certain other considerations, surely inappropriate, which works and moves the hands.”
The judge had previously ordered the Bihar State Legal Services Authority: “to evolve a system whereby no sooner a convict, who is in custody and mostly unaware of their rights, become entitled to premature release by virtue of Section 432 of the Code of Criminal Procedure, their cases would be automatically referred to the State Sentence Remission Board and then the State Sentence Remission Board would take up the matter immediately eliminating the discretion of the Jail Superintendent to refer the matter at their pleasure.”
The order critiqued a practice which has recently evolved under section 432(2) of the Cr.P.C. where by the state is bound to take permission from the sentencing court before releasing an accused person. To which presiding judges either respond by saying that it is the prerogative of the state to look into which person deserves premature release or they communicate that the convict having been convicted and conviction and sentence having been upheld up to Supreme Court, they cannot recommend premature release.
Justice Singh clarified this misconception by saying: “The right to be considered under Section 432 Cr.P.C. arises only upon ultimate confirmation of conviction and sentence. Therefore, merely because a person has been sentenced cannot be disentitle him for relief under Section 432 Cr.P.C. It is just the other way around. Upon serving out certain period of sentence he becomes entitled to relief under Section 432 Cr.P.C. Thus, the trial Judges also have to be educated in this regard for, unfortunately, they do not appear to be even referring to Section 432(2) of the Code.”
The court has ordered Bihar State Legal Services Authority(BSLSA) to draw up a transparent plan through which case of every convict can be expeditiously taken up by the State Sentence Remission Board. Without being subject to discretion of any authority including the Jail Superintendent, the cases should go to the remission board as soon as the conditions are appropriate. The order also said that BSLSA may also join hands with the Bihar Judicial Academy, Patna in an effort to train the trial court Judges as to their rights and duties in terms of Section 432(2) of the Code. The matter has been listed for orders on March 6.
Confusion in considering remission whether in the judiciary or in the Remission Board leads to one end result: it simply adds to the plight of the prisoners, as it is the prisoner who is at the receiving end.
Remission by itself is a highly complex process with multiple variables involved. Again, no remission can be claimed as a matter of right (Rule: 403 iii. Bihar Prison Manual 2012). A brief look into the remission calculation process of Bihar will explain its multiple layers of complexity and this holds true for most other states.
There are three types of remission in Bihar- i). Ordinary Remission ii). Special Remission and iii). State Government Remission. (Rule: 404 Bihar Prison Manual 2012). There is a Remission Committee in each prison of Bihar, where Superintendent is the Chairman, Deputy Superintendent is the Member Secretary and Assistant Superintendent is the Member (Rule: 406. Bihar Prison Manual 2012).
Ordinary remission may be granted to convicted prisoners by the Superintendent in the light of recommendations received from the other members of the Remission Committee. However, for thoroughly good conduct, participation in prison institutional activities, excellent performance in allotted work and also working on Sundays, a convicted prisoner can earn a maximum of up-to 7 days of ordinary remission for a calendar month (Rule: 411. Bihar Prison Manual 2012). Thereafter, on a quarterly basis after thorough scrutiny of the conduct of the prisoner and work performance, the remission recommended by the committee may be sanctioned by the Superintendent.
In addition to ordinary remission, based on annual good conduct, special remission may be granted by the Superintendent. Superintendent can grant special remission of up to 30 days a year and on the recommendation of the Superintendent, the Inspector General of Prison and Correctional Services can grant special remission of maximum 60 days in a year. (Rule: 428. Bihar Prison Manual).
State Government may award remission under section 432 Cr.P.C. to such prisoners or categories of prisoners as the state government may decide. The scale and quantum of remission may be fixed by the State Government from time to time. (Rule: 430. Bihar Prison Manual 2012).
However, there are a plethora of prison offences as described by the Prisoners Act 1894, in addition to IPC offences, which can result into forfeiture of earned remission upto 15 days or above by the Superintendent (Rule: 396, ii. Bihar Prison Manual). Forfeiture of remission above 15 days by the Superintendent, has no upper cap and can be executed without intervention of an appellate body or application of the judicial mind. Thus from the above description of remission rules it can be understood that earning of remission is a difficult task, the hard earned remission is subject to forfeiture and the Superintendent holds tremendous discretionary power in awarding or forfeiting remission. What this reveals is that there is no transparency on how matters are to be referred to the State Remission Board.
SCOPE FOR REFORM
In a way remission process can be made transparent if the process is standardised with appropriate bench markings and digitized. The remission card can be digitised and kept updated, so that the prisoner can check the exact amount of remission s/he has earned. As par rules, no remission can be claimed as a matter of right. However, there is no rule to restrict standardisation on how remission can be earned. A points system can be introduced and once remission is earned through a standardised points system, then on reaching maturity the case can automatically go to the State Remission board for consideration.
It can be argued here that if discretionary power of the Jail Superintendent is removed and the remission calculation process is automated, then it might create havoc in the prison discipline system. In response to this argument it can be suggested that remission earning can be standardised and automated through a digitized system but the power of forfeiture of the remission by the Superintendent, need not be eradicated. The Superintendent can be made accountable to the remission board, as to why s/he feels that in a certain case remission needs to be forfeited. But this power of forfeiture of remission should not be discretionary and should definitely come with an upper cap, in contravention to the existing rule.
Which means once when remission is earned through standardised and automated digital system, the case automatically goes to the State Remission Board, thereafter the Jail Superintendent may submit his reasons in writing to the Board, as to why s/he thinks a certain prisoner may not be granted remission. Again, rather than granting the superintendent power to object to remission in front of the State Remission Board, it would be rather more fruitful to grant the Superintendent the power to recommend to the Remission Board the grant of extra remission in addition to the already existing forms of remission granted to a prisoner of his choice. Power to recommend grant of extra remission by the Jail Superintendent, will act as a motivational tool that will inspire good conduct among prisoners.
Remission is hope for the prisoners and has a deep impact on the psyche of the person under confinement. Remission defines the scope of the institution of correction, as it is based on the sound principles of dignity and justice.
Smita Chakraburtty is a Prisoner Rights Activist, Researcher. She is currently working with Azim Premji Philanthropic Initiatives-APPI as Consultant Specialist on Court and Criminal Justice System.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].