Abstract
The overcrowding in jails due to the presence of a large number of prisoners cannot be reduced without bringing down the number of prisoners. Almost 80% of the prisoners' population of more than 27,000 lodged in different correctional homes of West Bengal consists of under-trial prisoners.

Out of them the number of under-trial prisoners languishing in jails for involvement in both genuine and allegedly false cases registered under POCSO Act, 2012 and NDPS Act, 1985 is huge. Due to stringent provisions of POCSO Act and NDPS Act, the under-trial prisoners booked under these two Acts find it almost impossible to get bail. Irregular trial due to absence of judges and non-grant of parole to the under-trial prisoners add to the despondency of such prisoners and create headache for the prison authorities who have to bear the brunt of frustration of these prisoners in the form of violence and disorder in the jails.

Hence, release of unnecessarily incarcerated prisoners and decongestion of the jails are very crucial for proper working of the criminal justice system. The release of prisoners by the use of power given to the President, the Governor, the State Government, the Prison Authorities, the High Court and the Supreme Court, is the best way to provide succour and relief to some of the incarcerated prisoners and their families and to decongest the overburdened prisons of the country.

Introduction
The release of convicted persons may be of three types, viz. release on expiry of sentence, provisional or conditional release and premature release. The premature release is a process by which prisoners in jails or prisons or correctional homes may be eligible for early release on certain grounds either by the President, or Governor under power given by the constitution of India or by the State's power of granting remission under Code of Criminal.

It is a kind of release of prisoners on compassionate grounds prior to the completion of their actual term of imprisonment. This can be done by way of commutation of sentence of life convictsand other convicts under section 433 of the CrPC, by way of remitting term sentence of prisoners under section 432 CrPC, by order of the President under Article 72 of the constitution of India, by order of the Governor under Article 161 of the constitution of India and by release of prisoners under any special law enacted by the State providing for release on probation of good conduct after they served a part of their sentences. Invoking Article 142, the Supreme Court of India can also pass order forrelease of prisoners.

Types of relief/release granted to prisoners

The different types of relief/release granted to the prisoners may be classified as follows:

• Pardon
  Absolving the offender of the crime and letting him go to taste the fruits of freedom is called Pardon. The pardoned offender is treated like a normal citizen.
   
• Commutation
  Changing the type of punishment given to the guilty into a less harsh one is called Commutation. As for example, a death sentence commuted to life sentence may be called Commutation.
• Reprieve
  A delay allowed in the execution of a sentence, usually a death sentence, in respect of a guilty person in order to allow him or her some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation is called Reprieve.
   
• Respite
  Reducing the quantum or degree of the punishment of an offender in view of some special circumstances like pregnancy, bad health or mental condition etc is called Respite.
   
• Remission
  Changing the quantum of the punishment without changing its nature, e.g., reducing 20 years rigorous imprisonment to 10 years is called Remission.
   
• Appropriate Government
  Appropriate Government according to section 432 (7) CrPC means the Central Government in cases where the sentence is for an offence relating to a matter to which the executive power of the Union Government extends and in other cases the Government of the State within which the offender is sentenced.

Power of President of India and Governor of a State to grant release of/ relief to prisoners

According to Article 72 of the Constitution of India, 1950, 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 – 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 vis-à-vis any law relating to a matter to which the executive power of the Union extends and in all cases where the sentence is a sentence of death

According to Article 161 of the Constitution of India, 1950, the Governor of a State 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 against any law relating to a matter to which the executive power of the State extends.

Under Article 72 of the Constitution of India, the pardoning power of the President is wider than that of the Governor under Article 161. Though Article 161 does not provide any such power to the Governor, Article 72 provides the power to grant pardon in cases where the punishment of sentence is by Court Martial. Further, the President can grant pardon in death sentence cases but the Governor doesn't have such power. However, the power of the President or Governor is not absolute and he has to depend on the advice of Union Home Ministry in this regard.

The President generally considers the recommendation of the Union Home Minister, Government of India.Similarly, the Governor acts on the recommendations of the State Government. The power of the President, Governor and the State Governments to grant release of prisoners is also subject to judicia review.

State's power of granting remission

Section 432 and section 433 of the CrPC envisage the power of State for granting remission to the convicts incarcerated in the prisons.

Under Section 432 (1) of CrPC

The appropriate government may, at any time, without conditions or upon any condition that the person sentenced accepts, suspend the execution of his or her sentence or remit the whole or any part of the punishment to which he has been sentenced, when any person has been sentenced to punishment for an offence.

Under Section 433 CrPC

Without the consent of the person sentenced, the appropriate Government may commute:

1. To any other punishment provided by the Indian Penal Code, a sentence of death.
2. To imprisonment for a term not exceeding fourteen years or for fine, a sentence of imprisonment for life.
3. To simple imprisonment for any term to which that person might have been sentenced or for fine, a sentence of rigorous imprisonment.
4. To fine, a sentence of simple imprisonment.

Restriction on powers of remission or commutation

According to section 433A CrPC, where a sentence of imprisonment for life has been imposed on conviction of a person for an offence for which death is one of the punishments provided by law or where a sentence of death imposed on a person has been commuted under section 433 CrPC into one of imprisonment for life, such person shall not be released from prison unless he has served at least fourteen years of imprisonment, notwithstanding anything contained in section 432 CrPC.

Process of grant of premature release
To recommend the premature release of convicts in appropriate cases, each state has a committee and the committees are known by various names such as State Level Committee, State Sentence Review Board et al. The composition of such committees may not be the same in each state.

The committee generally consists of the Home Secretary of the State, Judicial Secretary of the State, Principal Secretary in charge of the Prisons Department, Head of the Prisons Department, a Senior Police Officer, and the Chief Probation Officer of the State. The committee should meet regularly and consider cases of prisoners who are eligible for premature release. Every superintendent/officer-in-charge of the prison initiates the process of premature release vis-à-vis eligible cases and prepares comprehensive notes in respect of each prisoner and sends the same to the Head of Prisons.

The notes in respect of all prisoners include the details of the offence, societal and family background, and the circumstances under which they committed the offence. The notes also reflect the conduct and behavior of the prisoners as well as their physical and mental health.

All prisoners don't have a right to premature release
The right to be released prematurely is not available to all prisoners. However, after completion of 14-20 years in prison in case of a prisoner sentenced to life imprisonment or after completion of a certain proportion of sentence, as per the rules existing in a particular state, to be considered to be released prematurely is the right of the prisoners.

West Bengal State Sentence Review Board (SSRB)
In West Bengal, the State Sentence Review Board, on receipt of all requisite information and documents (police report and report of the concerned jail authority), considers the cases for release of individual convicts sentenced to life imprisonment, after they complete 14 years of actual imprisonment in jail and thereafter recommends for release of such prisoners to the State Government. West Bengal Sentence Review Board (SSRB) was constituted vide Judicial Department's Memo. No. 543-J//2P-44/99 dated 24.01.2000.

The composition of the State Sentence Review Board of West Bengal is as given below:

Home Secretary, West Bengal	Chairperson
Judicial Secretary, West Bengal	Convener
IG of Correctional Services, West Bengal	Member-Secretary
Secretary, Department of Correctional Administration, West Bengal	Member
DG & IG of Police, West Bengal	Member
Commissioner of Police, Kolkata	Member
Chief Probation-cum-Aftercare Officer, West Bengal	Member

The recommendations of the State Sentence Review Board (SSRB) require,as per section 432 (2) CrPC, opinion along with reasons and certified copy of the record of trial or such record thereof that exists in this regard of the Presiding Judge of the Court by which the conviction was given or confirmed vis-à-vis the case in which the prisoner was convicted before actual exercise of power of grant or refusal of remission under section 432 (1) CrPC.

A prisoner will not be barred from reconsideration of his case if his prayer for consideration of premature release is rejected by the Sentence Review Board on one or more than one occasions. However, only after expiry of a period of one year from the date of last consideration of a prayer for premature release to the Sentence Review Board, fresh prayer for reconsideration of the case may be given, according to the advisories of the National Human Rights Commission, New Delhi. With respect to premature release of the prisoners lodged in different correctional homes of West Bengal, no separate rules have been framed.

The cases recommended by the State Sentence Review Board (SSRB) of West Bengal are reportedly not taken up appropriately by the concerned authority with the convicting/confirming courts leading to inordinate delay in issuing release order of the convicts by the judicial department.

Nodal Department
The Judicial Department of the Government of West Bengal is the nodal agency in the state of West Bengal with the responsibility of issuing order of remission with direction of release of prisoners.

Withdrawal of Remission Order
According to section 432 (3) of CrPC, if any condition, in the opinion of the appropriate Government,on which a sentence of the convict granted premature release has been suspended or remitted is not fulfilled, the appropriate Government may cancel the suspension or remission and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

Number of persons released by West Bengal State Sentence Review Board
17 prisoners were released by the West Bengal Sentence Review Board in the year 2010, as compared to 75 in 2011, 101in 2012, 49 in 2013, 43 in 2014, 21 in 2015, 02 in 2016, 03 in 2017, 02 in 2018, 45 in 2019 and 82 in 2020.

Power of prison authorities and the Government of West Bengal to grant limited remission
The remission system means a set of rules formulated for regulating the award of marks to the prisoners by the officer-in-charge/superintendent of the prison and the consequent shortening of sentence of prisoners in jail, according to Prisons Act, 1894. This award of marks to the prisoners also helps in their early release from the prison.

The prisoners who have been sentenced to rigorous imprisonment for any period exceeding three months are entitled to remissions at the rate of four days per month. Any civil prisoner or criminal prisoner who has been sentenced to simple imprisonment exceeding three months is also entitled for remission as above, if he opts for and engages in labour.

Special remission subject to maximum of 30 days in a year may be granted to a criminal prisoner by the superintendent of a correctional home in consideration of meritorious service, arduousness of labour, extra labour, consistency in work and strict adherence to discipline and proficiency in educational and cultural affairs of prisoners.

Special remission up to 60 days may be granted to a prisoner on special grounds by the Inspector General of Correctional Services, West Bengal. Further, by order, special remission may be granted to all prisoners on any festive or memorable occasion by the State Government. However, the convicts undergoing sentence under NDPS Act and certain other categories of offence are not eligible for special remission.

From the total sentence awarded to a prisoner, the remission earned by him is deducted for the purpose of his early release.

Court Rulings:
The Constitutional Bench of the Supreme Court of India, in the case of Maru Ram etc v. Union of India & Anr, 1980, has observed that section 432 and section 433 CrPC are not a manifestation of Articles 72 and 161 of the constitution of India but a separate though similar power.

Further, the President and the Governor cannot exercise power under Articles 72 and 161 of the constitution of India respectively on their own but by the advice of the appropriate Governments. The Supreme Court also upheld the constitutional validity of section 433-A of the CrPC in this case and added that no separate order for each individual case would be necessary but a general order must be clear enough to identify the group of cases and indicate the application of mind to the whole group.

It was also observed that the exercise of power under section 432 CrPC was restricted by section 433-A CrPC, but the constitutional power of the President and Governor under articles 72 and 161 respectively cannot be restricted under section 433-A CrPC.

The Supreme Court of India, in the case of Epuru Sudhakar v. Ors, 2006, has upheld that the granting of clemency by the President or Governor can be challenged in court on various grounds such as, the order has been passed by without any application of mind, or the order is malafide, or the relevant material has been kept out of consideration to rule out any allegation of arbitrariness or executive malafide.

On 15 September, 2022, hearing a bunch of pleas of convicts sentenced to life terms seeking bail on the ground that their appeals are pending for years before different high courts and are not likely to be heard in near future due to huge pendency of cases clogging the judicial system, a bench of Justices Sanjay Kishan Kaul and Abhay S. Oka of the Supreme Court ordered that the convicts who have completed 10 years of their life sentence and whose appeals would not be heard in the near future by the High Court should be enlarged on bail unless there exist cogent reasons to deny the relief. The judges had to keep in mind the objective of decongesting the jails in case of convicts, who appeals are not being heard for years and are not likely to be heard in the near future.

On 2 February, 2023, a bench of Justices Sanjay Kishan Kaul and Abhay S. Okaof the Supreme Court issued a set of direction related to undertrial prisoners who were granted bail but continued to remain in prison for not being able to fulfil the conditions mentioned in their bail order.

The directions are as follows:

1. The Court passing the bail order would be required to e-mail a soft copy of the order to the prisoner through the jail superintendent on the same or the next day. The superintendent will then have to enter the date of the grant of bail in the e-prisons software or any other software being used in the jail.
2. If the accused is not released within a period of 7 days, it would be the jail superintendent's responsibility to get the prisoner in touch, through appropriate authorities, with a para legal volunteer or jail visiting advocate to assist him.

In the case of Kehar Singh v. Union of India (1988), it was observed by the Supreme Court that courts cannot deny to a prisoner the benefit to be considered for remission of sentence.

In the case of State of Haryana v. Mahender Singh (2007), the Supreme Court has ruled that even though no convict has a fundamental right of remission, but the State in exercise of its executive power of remission must consider each individual case.

Article 142 of the Constitution of India gives power to the Supreme Court to pass a decree or order as necessary for doing complete justice in any cause or matter pending before it. Invoking Article 142 on November 11, 2022, the Supreme Court had ordered the release of six convicts who were serving life sentences in the Rajiv Gandhi assassination case.

State Government to act after consultation with Central Government in certain cases

According to section 435 CrPC, the powers conferred by sections 432 and 433 CrPC on the State Government to remit or commute a sentence, in any case where the sentence is for an offence which was investigated by Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than CrPC, or the case which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government or the crime which was committed by a person in the service of the Central Government, while acting or purporting to act in the discharge of his official duties, shall not be exercised by the State Government except after consultation with the Central Government.

Initiatives for the release of eligible prisoners
During the celebration of 'Azadi ka Amrit Mahotsav' in 2022, the Government of India initiated a scheme for phased commutation of sentence of thousands of women and transgender convicts above the age of 50 subject to their behaviour in jails. The scheme also covered male prisoners above the age of 60 and physically challenged convicts with 70% disability and more who had completed more than half of their total sentence.

Poor prisoners who had completed their sentence but were in jails due to non-payment of fines imposed on them also got benefitted as their fines were waived off. The scheme didn't apply to those prisoners who were convicted in death sentence, life imprisonment, rape, terror charges, dowry deaths, Explosive Act, National security Act, Official Secrets Act, Anti-Hijacking Act, Prevention of Corruption Act, dowry death, counterfeiting currency notes, human trafficking and money laundering cases.

The convicts who had consistently maintained good conduct during their term in prisons especially those with no punishment during the sentencing period in the last three years were considered eligible for remission.

Those who committed an offence at a young age between 18-21 years and with no other criminal case against them and who had completed 50 per cent of their sentence period were also considered for the special remission.

The State Governments and Union Territory Administrations were asked by the Union Home ministry to form the State Level Screening Committee consisting of additional chief secretary or principal secretary in charge of the home department of the concerned state or the UT as chairperson, additional chief secretary or principal secretary in charge of the department of law as member and DG prisons as member secretary. The committee examined each case and reviewed the records of all prisoners and made its recommendations for release of the eligible prisoners to the State Government.

The cases which required approval of the Central Government were sent to the Union Home Ministry for seeking approval. The foreign national convicts were released only after taking approval of theMinistry of External Affairs of the Government of India.

The Union Home Ministry on 7 April, 2023 said that it has decided to launch a special scheme 'Support for Poor Prisoners' to provide financial support to poor people who are languishing in jails and are unable to afford the penalty or the bail amount.

Conclusion
Jails across India continue to remain overcrowded with 4.78 lakh prisoners including one lakh women prisoners, against an actual capacity of 4.03 lakh, according to an official estimate. The process of release of eligible prisoners both convict and under-trial needs to be expedited at all levels for relieving the pain of the prisoners and their families and making the jails more habitable.

Further, more budget needs to be allocated to the prisons department in order to improve infrastructural and health including mental health facilities of the prisons and to increase the number of prison personnel, doctors, psychologists, nurses and paramedics etc.

The problem of presence of many drug addicts in the prisons also cries for special attention vis-à-vis establishment of de-addiction centres at least in all the central jails or in the government hospitals operating in the vicinity of the jails. By improving the infrastructural facilities, we can also reduce the number of deaths in jails all over the country.

References:

1. Commutation of Death Sentence – Drishti IAS, https://www.drishtiias.com/daily-news-analysis/commutation-of-death-.
2. Maru Ram etc. etc vs Union of India &Anr on 11 November, 1980, Indian Kanoon, https://indiankanoon.org/doc/1222748/
3. Maru Ram v. Union of India (1981) 1 SCC 107, by Dr N. Balu* and Dr R. Prakash, Eastern Book Company, https://www.ebc-india.com/lawyer/articles/2002v6a2.htm
4. Maru Ram v Union of India 1980, Sandeep rana, https://www.ejusticeindia.com/maru-ram-v-union-of-india-1980/
5. SC refers to larger bench issue of grant of remission to convicts by states, https://indianexpress.com/article/india/sc-refers-to-larger-bench-issue-of-grant-of-remission-to-convicts-by-states-6511323/
6. https://devgan.in/crpc/section/435/
7. Supreme Court says life convicts who have completed 10 years of jail term should be released, Times of India, September 15, 2022, 21:02 IST, http://timesofindia.indiatimes.com/articleshow/94229682.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst, September 15, 2022, 21:02 IST
8. Supreme Court Issues Guidelines to Avoid Delay in Release of Prisoners on Bail, 2 February, 2022, The Quint, https://www.thequint.com/news/law/supreme-court-issues-guidelines-to-avoid-delay-in-release-of-prisoners-on-bail
9. Explained | Supreme Court's powers to release convicts, Deccan Herald, UPDATED: NOV 18 2022, 16:59 IST, Read more at: https://www.deccanherald.com/national/explained-supreme-courts-powers-to-release-convicts-1163464.html
10. Reports of superintendents of 60 correctional homes of West Bengal
11. BPRD, Ministry of Home affairs, Laws/Rules/ on Parole/Furlough/ Premature Release, https://bprd.nic.in/content/3534_1_Compilation.aspx
12. Centre to launch special scheme to provide financial support to poor prisoners: Home Ministry, ANI, April 7, 2023, https://www.aninews.in/news/national/general-news/centre-to-launch-special-scheme-to-provide-financial-support-to-poor-prisoners-home-ministry20230407164649/
13. Government Plans Special Remission for Prisoners as Part Of 'Azadi Ka Amrit Mahotsav' Celebration, Outlook Web Desk, 5 July, 2022, https://www.outlookindia.com/national/government-plans-special-remission-for-prisoners-as-part-of-azadi-ka-amrit-mahotsav-celebration-news-206837