Recently, the Tamil Nadu government released 13 prisoners serving life sentences for the massacre of six Dalit men in the village of Melavalavu in 1997. The move invited a swift rebuke from the Madras High Court for what it saw as the government’s haste in releasing them on grounds of ‘good conduct’, and caused considerable disquiet among activists and Scheduled Castes. In a conversation moderated by Jayant Sriram , Anup Surendranath, who teaches Constitutional Law at the National Law University, Delhi and Nandita Rao (Delhi High Court advocate and Additional Standing Counsel, Criminal, for the Delhi Government) discuss the constitutional position on remission and the procedures through which it is exercised. Edited excerpts:
Let’s start with the policy of State governments releasing prisoners early. The Tamil Nadu government grants general amnesty to a number of prisoners every year on M.G. Ramachandran’s birthday and on some other occasions. Does the practice interfere with the normal process by which prisoners are granted remission of sentence?
Anup Surendranath: The State government has powers of remission under Sections 432 and 433 of the Criminal Procedure Code. Remission works in different ways. Each State has its own prison rules because ‘Prisons’ is a State subject. Each State has a different way of calculating remission. One way you get remission is for various kinds of conduct or work that you do in prison. You can also get remission [because of] the power of the State government under Section 432 of the CrPC, which is what the government seems to be exercising in this [case]. The Governor, if the State is under President’s rule, and the President too can exercise this power.
Nandita Rao: Yes, prisoners are released on the birth or death anniversaries of prominent popular and democratic leaders. But it’s not as if you wake up on that particular date and announce that the first 10 names on the roll are going to be released. There is a proper procedure. There is a sentence review board.
Some prisoners are entitled to consideration for early release after completion of 14 years; certain categories of prisoners are entitled after 20 years. So, six months before they are nearing 14 or 20 years, the prison authorities assess whether the person’s potential for crime has ended, whether his family is in socio-economic need, and whether he will be useful to society. The DCP and then the probation officer make an assessment. The CrPC provides for this. That is reformed jurisprudence.
There is still a lot of confusion on the meaning of life sentence. Some people think a life sentence means 14 years; others think it a sentence for life. What is the constitutional position?
Anup Surendranath: I guess the controversy in the Tamil Nadu case is centred on how the government is choosing a bunch of people to be released and whether there are certain politically sensitive cases. But as Nandita said, there is a procedure to be followed and we’ll have to see if there was compliance with that procedure in this particular situation.
But on the larger question of life imprisonment, you’re right, there is some confusion. When a court says that a person is sentenced to life, that does mean till the end of natural life. That means that the person is no longer going to get any other remedy from the court. And the court’s position is that there is no automatic right to release.
Then there’s confusion arising from various prison manuals and how different States calculate remission. What is this calculation? If I’m on good behaviour, I get two days of remission per month. So, how do you calculate this for life imprisonment prisoners?
Various prison manuals have 14 years or 20 years as the number they take. From that they start deducting these two days per month and that’s why you need to fix a number to life imprisonment to calculate remission right under the prison manuals. Now, of course, the court was concerned that in many cases there was still early release of prisoners. So, as I said earlier, there is the prison manual way of calculating remission and there is the CrPC way. And it is with the latter that courts became concerned — when prisoners are being released early and you can see the expression of that in Section 433, which brings in a limitation and says you can’t be released unless you’ve served 14 years in prison. But the court has clarified that this does not mean that you are automatically entitled as a matter of right to be released after 14 years; this is just the minimum period. After that, the government can assess based on the processes that Nandita was talking about.
Nandita, in a few instances the Supreme Court has said that a life sentence means till the end of natural life. I think that’s also been the case in some instances when a death sentence has been commuted to life, a pronouncement that it is being commuted on condition that the convict spends the remainder of his natural life in prison. It does point towards a trend of handing down this harsher wording of the punishment. What do you make of this trend?
Nandita Rao: I’ve also noticed that when a death sentence is commuted to life. Generally, they’ve said they will not be released or granted remission till 35 years of incarceration. I haven’t read anywhere where they say that it’s till the end of the prisoner’s life. I think this sort of jurisprudence is to do with their own sense of equity between the victim and the accused. And I personally disagree with it because I feel it’s a violation of Article 21, which says that your life and liberty can be restricted only by the due process of law. And the due process of law has to be the statute. And the judiciary can only prescribe law or circumvent a law where none exists.
Sections 432 and 433 of the CrPC are quite clear. There are detailed guidelines for the State. And the sentence review boards only release people after 14 years if they notice that there is regret, reform, if [the prisoners’] families are in need. So, I think there is pressure on judges to balance these two lobbies of capital punishment and anti-capital punishment. Whether in a case involving the rape and murder of an infant, if the guy is out in 14 years, or in this case [Melavalavu], where there was a heinous offence against a particular community and the guys are out after 14 years, I personally think the solution is not to say till 35 years or till a hundred years. That is the American jurisprudence.
We have to have confidence in our State agencies. And if they make a mistake, this can be challenged in a writ petition about the timing of the release and the considerations which went into the release. Under the Right to Information Act you can ask for an evaluation from the prison authorities — how has this person shown regret or reform? What is the evidence that he will not commit such a crime again, and this can all be challenged in a writ petition.
Anup Surendranath: I think there is a serious separation of powers issue that the court has waded into. In Union of India v. V. Sriharan (2015), who is the person convicted in the Rajiv Gandhi case, the court considered the question of whether the ‘court’ can exclude the remission powers of the government under Section 432 of the CrPC. As I explained earlier, the court gives a sentence and then the State government can choose, as per the procedure laid down, whether to exercise its remission powers or not. In Sriharan the Supreme Court said in all of these cases, the appellate court, that is a High Court or the Supreme Court, can explicitly exclude the remission powers of the State government or the Central government under Section 432 of the CrPC. That’s basically saying that courts can now ensure that accused persons can remain for the rest of their natural life in prison. That is a serious infringement of the separation of powers doctrine and that judgment itself has a dissent by two judges. They recognised the problem of this in creating a new punishment. This sort of punishment — that a court can impose life imprisonment and tell the government that you will not exercise the powers that you have been given under the CrPC — is a creation of a new punishment not authorised anywhere in the law. Thinking that harsher punishments and longer sentences will somehow solve serious social problems is a grave mistake.
Are there any instances of types of crimes under which you might say that a reduced sentence or early release is not appropriate?
Nandita Rao: I am totally in disagreement with this argument that crimes which are coined as terrorist crimes or sedition crimes, or even violence or rape of a child, shouldn’t be considered for remission. That’s because remission is about the offender, it is not about the offence. And this tendency to make the offender and the offence identical is dangerous because this suggests that if somebody has committed an offence once, that person is to be branded or identified or limited to the offences committed. That person may be other things. He may be a father, a husband, a Good Samaritan in another respect, but probably because of an ideological indoctrination or financial need or mental distress, the person commits a crime.
Anup Surendranath: I agree. The question of remission is essentially a question of reformation. Has this person reformed in prison and is he ready to be reintegrated into society? And I think where it gets complicated really is that our prisons don’t have the infrastructure, investment or the expertise to really make this assessment meaningfully over the years. So, we come out with this perverse solution: because we cannot have proper processes to assess reformation, let’s keep a certain category of offenders in prison for as long as we can. And therefore I see this entire move as a failure of another process. We really need to ask the question, as a society why are we sending people to prison? If we are sending people to prison as revenge and we want to express that, then, sure, we can have that social conversation and all of these other considerations go out of the window. But Supreme Court judgment after judgment has said that the aim of our penal system is reform. Right?
And if you see the criminal amendments after the Delhi gang-rape case and the 2013 and 2018 Indian Penal Code amendments, the number of offences that now seem to invite life imprisonment for the remainder of the natural life [seem to have increased]. I agree that we seem to be going down this terrible American route of longer and longer sentences where people will never get out.
Nandita Rao: In these types of sensitive cases, it is the duty of the state to also release the assessment of this person, the remorse that they have, and the acknowledgement that what they did was wrong. This needs to be done so that it is made clear that the state is not endorsing the convict’s conduct. So, if the government is actually doing this in a reformative spirit, it should make that known, but if the government is insidiously doing it for political reasons, then there is a problem. So, let us not attack the idea of remission and the idea of sentence review boards. Let us attack the Tamil Nadu government for not publicising the reasoning behind this release.
Anup Surendranath is a professor at National Law University Delhi; Nandita Rao is the Additional Standing Counsel (Criminal) for the Government of Delhi