Remission refers to a reduction in the length of a prison sentence, distinct from furlough and parole, which involve temporary releases. While furlough and parole offer breaks from prison life, remission directly shortens the sentence's duration without altering its fundamental nature. In remission, the prisoner is granted a specific release date, effectively becoming a free person in the eyes of the law. The original sentence remains intact, but the prisoner is relieved of serving the remaining portion.

However, remission is conditional. If the prisoner violates any of the terms associated with the remission, it can be revoked, forcing them to serve the full original sentence.

Remission in criminal law entails a reduction or elimination of a convicted person's sentence by the state. It permits early release from incarceration based on factors such as exemplary conduct, crime severity, the convict's health, or socioeconomic conditions. Remission may be granted on a conditional or unconditional basis and is often regarded as a form of clemency or compassion.

The process of granting remission involves assessing the convict's behaviour in confinement, potential danger to society, and the objectives of continued imprisonment. While the authority to grant remission typically lies with state governments, judicial review may play a role in ensuring that the decision is not arbitrary, capricious, or unjust. The purpose of remission is to encourage positive behaviour among inmates, facilitate rehabilitation, and enable reintegration into society, striking a balance between justice and leniency.

Section 432 of the Criminal Procedure Code, 1973:

Section 432 of the Criminal Procedure Code, 1973 pertains to the authority of the appropriate Government to suspend or remit sentences. Upon conviction of an offense, the Government has the power to suspend the execution of the sentence or to remit all or part of the punishment. This can be done unconditionally or subject to certain conditions that the convicted individual agrees to.

Upon receiving an application for the suspension or remission of a sentence, the Government seeks the opinion of the presiding Judge of the Court where the conviction took place or was confirmed. The Judge's opinion must be accompanied by reasons and a certified copy of the trial record or relevant portions of it.

If the Government believes that the conditions for suspension or remission have not been met, it may revoke the suspension or remission. In such cases, the individual can be arrested by any police officer without a warrant and remanded to serve the remaining portion of the sentence.

Suspension or remission conditions may be ones that the beneficiary must fulfil or ones that are outside of their control. The Government may issue general rules or special orders regarding the suspension of sentences and the handling of petitions. However, petitions for the suspension of sentences (other than fines) passed on male individuals over the age of eighteen cannot be entertained unless the individual is in jail. The petition must be presented by the individual themselves or on their behalf through the jail officer in charge.

The rules outlined in the previous sections apply to any order issued by a Criminal Court. This includes orders made under any section of this Code or other relevant laws. These rules apply whenever an order restricts a person's freedom or places financial or property-related obligations on them.

In this section and Section 433, the term 'appropriate Government' refers to:

• The Central Government: When the sentence is for an offense against, or the order is issued under, any law concerning a matter falling under the Union's executive power.
• The State Government: When the offender is sentenced or the order is issued within the jurisdiction of that particular State.

Constitutional Provisions:
Both the President and Governor possess the sovereign power of pardon, granted by the Constitution.

Presidential Power (Article 72):
The President can grant pardons, reprieves, respites, or remissions of punishment. The President can suspend, remit, or commute sentences for offenses in Court-martials, Offenses related to the Union government's executive power and Death sentences.

Governor's Power (Article 161):

• The Governor can grant pardons, reprieves, respites, or remissions of punishment.
• The Governor can suspend, remit, or commute sentences for offenses related to the State's executive power.
• The scope of the President's pardoning power under Article 72 is broader than that of the Governor's under Article 161.

Mahender Singh v. State of Haryana

The Supreme Court, in the Mahender Singh v. State of Haryana case (AIR 2007), ruled that while the Constitution does not explicitly guarantee a right to remission for convicts, it does mandate that convicts must be considered for release. This ensures that their constitutional rights under Articles 20 and 21, which guarantee protection from double jeopardy and the right to life and personal liberty, respectively, are upheld.

Laxman Naskar v. State of West Bengal (2000):

The Supreme Court of India established guidelines for granting remission in Laxman Naskar v. State of West Bengal (2000). These guidelines consider the isolated nature of the offense and its societal impact, the convict's likelihood of recidivism, the convict's diminished potential for criminal activity, the purpose of continued confinement and the socio-economic status of the convict's family

Epuru Sudhakar v. State of Andhra Pradesh (2006):

The Supreme Court in Epuru Sudhakar v. State of Andhra Pradesh (2006) affirmed that judicial review of remission orders is permissible based on specific grounds, including Failure to exercise due diligence, Malicious intent, Decisions influenced by extraneous or irrelevant factors, Omission of pertinent information and Arbitrary and unreasonable orders.

Union of India v. V Sriharan (2015):

In Union of India v. V Sriharan (AIR 2015 SC), the Supreme Court was tasked with defining the term 'appropriate government' in Sections 433 and 433A of the CrPC. A constitutional bench of the Supreme Court addressed the issue. The Supreme Court established two categories for determining the 'appropriate government' for remission:

• If the sentence is imposed under a law falling under Parliament's jurisdiction, the central government holds the authority to grant remission.
• If the sentence is imposed under a law falling under the state legislature's jurisdiction, the specific state in question constitutes the 'appropriate government' for remission.

In the case of Union of India v. V Sriharan (2015), a Constitution Bench also considered whether it is permissible to sentence an offender to life imprisonment without the possibility of remission until their 'last breath.'

A three-judge majority approved this 'special sentence,' considering it an 'alternative punishment' to the death penalty. Former Chief Justice U.U. Lalit, dissenting, maintained that denying the possibility of remission 'hinders rehabilitation.' As the 'special sentence' is not codified in any statutes, Justice Lalit believed it 'exceeded the court's authority' to impose it.

Bilkis Yakub Rasool vs. Union of India & Ors. (2022):

In the 2002 Gujarat riots, Bilkis Bano, pregnant at the time, suffered a heinous gang rape. Tragically, seven members of her family, including her three-year-old daughter, were ruthlessly murdered by a rioting mob. The case was characterized by its horrific nature and the deep-seated communal tensions that ignited the violence. After prolonged legal battles, the Central Bureau of Investigation (CBI) assumed the investigation to safeguard its integrity.

In 2004, due to grave threats to Bilkis Bano's safety, the Supreme Court of India relocated the trial from Gujarat to Mumbai. Additionally, the Court mandated the appointment of a dedicated public prosecutor by the central government to oversee the case.

In 2008, a Mumbai court found 11 individuals guilty of their roles in the gang rape and murders, marking a crucial milestone in Bilkis Bano's pursuit of justice. However, in a controversial move, the Gujarat government granted clemency to the 11 convicted individuals in August 2022, leading to their release.

This decision ignited widespread outrage and legal challenges, questioning the authorization and jurisdiction for granting such remissions. The Supreme Court's ruling nullified the Gujarat government's remission grant due to lack of authority and concealed facts.

The Supreme Court asserted that the Gujarat government did not possess the jurisdiction to grant remission, as Section 7(b) of the CrPC stipulates that the appropriate government is the one that sentenced the offender. The Court emphasized that the decision to grant remission should be made by the state in which the sentencing occurred, not where the crime was committed or where the convicts were imprisoned.

The Court criticized the remission process for its flawed consideration and concealment of facts, which constituted a fraud upon the court. The Supreme Court condemned the Gujarat government for overreaching its authority and unlawfully exercising power that belonged to the Maharashtra government. The Supreme Court rejected the convicts' plea for liberty and directed them to surrender to jail authorities within two weeks, upholding the integrity of the judicial process.

The Court identified serious shortcomings in the remission process, noting that the orders lacked proper consideration and were obtained through the concealment of facts, effectively amounting to a fraud on the court. This criticism points to the need for a more transparent and just process for granting remission.

The Supreme Court criticized the Gujarat government for overstepping its authority, asserting that it unlawfully exercised power that rightfully belonged to the Maharashtra government. This overreach was deemed inappropriate and unauthorized, violating the principles of legal jurisdiction.

The Supreme Court rejected the convicts' plea to protect their liberty and directed them to surrender to jail authorities within two weeks. This directive underscored the Court's commitment to upholding the integrity of the judicial process and ensuring justice is served according to legal protocols.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565