Special Remission to Prisoners

In News

• Recently, the Union Home Ministry issued a set of guidelines to the States and the Union Territories on the grant of special remission to prisoners to commemorate the 75th year of Independence.

Key Points

• A certain category of prisoners would be released in three phases — August 15, 2022; January 26, 2023 and August 15, 2023.
• Eligible Prisoners under the Scheme:
  • Women convicts of 50 years of age and above, who have completed 50% of their total sentence period (without counting the period of general remission earned).
  • Transgender convicts of 50 years of age and above, who have completed 50% of their total sentence period (without counting the period of general remission earned).
  • Male convicts of 60 years of age and above, who have completed 50% of their total sentence period (without counting the period of general remission earned).
  • Physically challenged/disabled convicts with 70% disability and more (duly certified by a Medical Board) who have completed 50% of their total sentence period (without counting the period of general remission earned).
  • Terminally ill convicts (duly certified by a Medical Board). Convicted prisoners who have completed two-third (66%) of their total sentence period (without counting the period of general remission earned).
  • Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine.
  • Persons who committed an offence at a young age i.e. between 18-21 years and with no other criminal involvement/case against them, who have completed 50% of their sentence period (without counting the period of general remission earned). 
  • Apart from this, the state government may exclude any offence it deems fit.
• Ineligible Inmates: 
  • Death Sentence or Life Imprisonment: Persons convicted with death sentence or where death sentence has been commuted to life imprisonment or persons convicted for an offence for which punishment of death has been specified as one of the punishments would not be eligible for the grant of special remission.
  • Convicts of Terrorist Activities: Persons convicted with sentence of life imprisonment, convicts involved in terrorist activities or persons convicted under:
    • Terrorist and Disruptive (Prevention) Act, 1985, 
    • Prevention of Terrorist Act, 2002, 
    • Unlawful Activities (Prevention) Act, 1967, 
    • Explosives Act, 1908, National Security Act, 1982, 
    • Official Secrets Act, 1923, and 
    • Anti-Hijacking Act, 2016, would also not be eligible.
  • The persons convicted for dowry death, counterfeiting currency notes, offence of rape & human trafficking.
  • The persons convicted under: 
    • Protection of Children from Sexual Offences (POCSO) Act, 2012, 
    • Immoral Trafficking Act, 1956, 
    • Prevention of Money Laundering Act, 2002, 
    • Foreign Exchange Management Act, 1999, 
    • Black Money (Foreign Income and Assets) and 
    • Imposition of Tax Act, 2015, 
    • Narcotic Drugs Psychotropic Substances (NDPS) Act, 1985, 
    • Weapons of Mass Destruction and their Delivery Systems (Prohibition and Unlawful Activities) Act, 2005, 
    • Prevention of Corruption Act, 1988, offences against the State (Chapter-VI of IPC) and 
    • Any other law which the State governments or the Union Territory administrations consider appropriate to exclude would not qualify for the special remission.
• Age Determination: The age of the convicts should be determined on the basis of the matriculation or birth certificate. In the absence of both, the age given in the judgement of the trial court could be taken into consideration.
• State Level Screening Committee: The States and the Union Territories were told to constitute the Committee comprising of:
  • The Home Secretary, 
  • Law Secretary, 
  • Director/Inspector-General of Prisons to examine the cases of eligible persons.
• Examination of the Recommendations: 
  • The State Government will examine the recommendations thoroughly while ensuring that hardened criminals, repeat offenders and those who fall in prohibited categories are not considered for special remission with a view to ensure public peace and well-being of the society.
  • The State Government will place its recommendations before the Governor for consideration and approval in exercise of powers under Article 161 of the Constitution.

Pardoning Power of President and Governor

• About: Power of Pardons under Articles 73 and 161 of the Constitution is different from judicial power as the governor or the President can grant a pardon or reduce the sentence of the court even if a minimum is prescribed.
• Pardoning Powers defined in the Constitution:
  • Pardon: Means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
  • Commutation: It means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
  • Reprieve: It means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
  • Respite: It means reducing the quantum or degree of the punishment to a criminal given some special circumstances, like pregnancy, mental condition etc.
  • Remission: It means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years. 
• Pardoning Power of President of India: Article 72
  • 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 against any law relating to a matter to which the executive power of the Union extends;
    • In all cases where the sentence is a sentence of death.
  • Thus, Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute sentences in certain cases.
• Pardoning Power of Governor: Article 161
  • 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.

Difference between the Pardoning Powers of the President and the Governor

• The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161.
• The power differs in the following two ways:
  • Court Martial: The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
  • Death sentence: The President can grant pardon in all cases where the sentence given is the sentence of death but the pardoning power of the Governor does not extend to death sentence cases.

Notable Cases

• In Maru Ram v Union of India, the Constitutional Bench of the Supreme Court held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own and that the advice of the Government binds the head of the Republic.
• Kehar Singh v Union of India: It held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter of right. The power exercisable by the President being exclusive of administrative nature is not justiciable.
• Swaran Singh v State of U.P: The Court held the order of Governor arbitrary and, hence, needed to be interdicted.

Source: TH