Premature release not absolute right of convicts

PROTESTERs laid siege to the Chandigarh-Punjab border in Mohali last month to press for the release of certain Sikh prisoners, arguing that they had spent more than 14 years in prison and, hence, had served their full sentence of life imprisonment. These prisoners include convicts involved in the assassination of former Punjab CM Beant Singh in 1995. A petition demanding the release of one of the assassins is pending in the Supreme Court.

According to Section 45 of the IPC, read with Section 55, life imprisonment entails incarceration till natural life of a person, unless the appropriate government uses its discretion to order premature release by commuting life imprisonment to the sentence already undergone. Such release is governed by a policy to avoid arbitrariness, and is subject to an eligibility criterion. According to the prison rules, it is mandatory for a jail superintendent to present for consideration of the appropriate government the premature release case of every convict who has spent 14 years in jail.

In that respect, the Sikh prisoners in question have earned the right to be considered for premature release. Normally, a disciplined lifer convicted in a not very sensational case is released from jail after 14 years of incarceration. The protesters say the Sikh prisoners have spent far more than 14 years in jail and should be released. They fail to realise that the eligibility for consideration for release is different from the right to be released. In addition to eligibility, premature release is a sine qua non of several other considerations, including the prisoner’s persistent good conduct and disciplined life inside prison, the gravity and nature of the offence, public safety and national security concerns, capacity to commit crime in future, respect for the law of the land, custody period and the age and physical health of the convict.

Former US President Abraham Lincoln once said, “I have always found that mercy bears richer fruits than strict justice.” In the case of Epuru Sudhakar (2006), the SC had observed, “Premature release does not amount to overturning of judgment of conviction; it is mitigating the punishment.” Justice Krishna Iyer, in the All India Judges’ Association case (1992), observed, “Law and justice are distant neighbours, sometimes even strange hostiles.”

Premature release is a means to adjusting the scale of justice to make law and justice good neighbours. Accordingly, clemency is an essential ingredient of ‘correctional justice’, deeply embedded in the constitutional and legal schemes in India; though it is not an absolute right of all convicts.

The President and governors have been conferred powers to grant pardon and suspend, remit or commute sentences in certain cases as per the provisions of Articles 72 and 161 of the Constitution of India, respectively.

Montesquieu, a French legal luminary, justifies clemency power as an act of grace and humanity and the defining attribute of any sovereign to correct possible judicial errors. Even the SC has recognised the relevancy of these provisions in order to relieve the convicts from a sentence which is mistaken, harsh or disproportionate to the crime committed.

The Central and state governments also have powers to remit and suspend the sentence of a convict as per Section 432 of the CrPC and even suo motu commute sentence of a convict under Section 433 of the CrPC. All such premature release orders should conform to the premature release policy and are justiciable. The premature release of life convicts in the Bilkis Bano case of rape and murder by the Gujarat Government is already under the scrutiny of the SC.

On the other hand, the SC has released long-incarcerated prisoners after they failed to get clemency from the state. In the Shatrughan Chauhan case (2014), the SC ordered the commutation of death penalty to life imprisonment of all convicts who were awaiting execution for long, justifying that Article 21 of Constitution does not end with the pronouncement of sentence but extends to the stage of the execution of the sentence.

Life-term convicts in the Rajiv Gandhi assassination case, incarcerated for about three decades, were set free last year by the apex court, exercising its powers to do ‘complete justice’ under Article 142. Only time would tell how the SC approaches the matter of the similarly circumstanced Sikh prisoners.

Legal luminaries, however, don’t want the Supreme Court to invoke extraordinary jurisdiction under Article 142 and release the dreaded criminals. They argue that the judiciary cannot revolt against the Constitution. Another question is being asked: If all cases of life sentence and capital punishment are to be commuted on one pretext or the other, what is the purpose of having these forms of punishment on the statute book? How can a life, taken away by the procedure established by law, be ‘restored’ to proven dreaded criminals, it is argued.

Therefore, strict security vetting by the state is required before taking a decision on the release of convicts who are involved in sensational crimes, keeping in view national security and public safety. Strategic state and public interest prescribes that decisions on such clemency matters should remain under the veil of secrecy and the state should not be compelled to take a call in haste.

Praying for mercy is a solemn affair and granting of it a huge responsibility. The state cannot afford to — and should not — succumb to pressure tactics adopted to demand the release of dreaded offenders; it would be worthwhile, though, to watch how the Central Government responds to the demand for the release of Sikh convicts. It is yet to be seen how the Supreme Court will strike a balance between the so-called demand for justice by the petitioners and the possible strategic reluctance of the state to react to it instantly in the prevailing circumstances.