By Dr Swati Jindal Garg
Mumia Abu Jamal has rightly said: “Prison is a second-by-second assault on the soul, a day-to-day degradation of the self, an oppressive steel and brick umbrella that transforms seconds into hours and hours into days”… days that are endless and transcend one’s life!
Time and again, it has been said that nothing in this world is more certain than death—this fact may be well understood, but what about the people who are condemned to a lifelong wait for death with no prospect for release?
In India, while a lot has been discussed on the abolition of death penalty and reformative justice as a tool for reforming and integrating the convicts in the society, deliberations are conspicuously missing for the “other death penalty” more commonly known as “whole life sentences”. A whole life sentence is a sentence of life imprisonment without any possibility of parole or conditional release. It also includes sentences where courts place restrictions on consideration for remission prior to the completion of a specific term of his/her sentence.
Whole life sentence was legitimised by a five-judge bench of the Supreme Court in December 2015 in Union of India vs Sriharan alias Murugan and others, or the Sriharan verdict, according to which life-term sentences now include conditions whereby either the convicted persons spend the rest of their lives in prison, or have to serve imprisonment for a fixed term before consideration for early release.
The point to ponder, however, is whether such life sentences are actually an alternative to capital punishment, or are they merely a sentence of “death in prison”? Whole life sentences have today become the subject of international debate with scholars and free thinkers arguing that the loss of the hope of ever living in a free society infringes upon human dignity and the right to personal development.
The term “life” has been defined as “the life of a human being, unless contrary appears from the context” and the term life imprisonment entails “a sentence for the remaining life of the offender”. However, there exist certain constitutional and statutory provisions which confer upon persons sentenced to life imprisonment, an opportunity to seek early release from prison, including Articles 72 and 161 of the Constitution that confer the power to grant pardons, reprieves, respites or remissions upon the president of India and the governors of states, respectively.
Apart from the above, statutory laws also confer powers on the executive to commute, suspend or remit sentences under Sections 432 and 433 of the Code of Criminal Procedure of 1973 (CrPC) which prescribes the power of the appropriate government to suspend or remit sentences as well to commute sentences, including that of life imprisonment. Then, there are provisions which permit prisoners to earn remission under the prison rules or other relevant rules, based on their good behaviour or other stipulated grounds. However, the same differ across states.
Even though a deliberation on whether the term life sentence means a sentence for the remainder life of offenders or whether such persons have a right to be released has been going on for some time, the same was finally decided upon by the Supreme Court in the Sriharan verdict wherein it was affirmed that a life sentence means imprisonment for the rest of the life of the prisoner, subject to the right to claim remission as provided in the Constitution and u/s 432 of the CrPC. It was also clarified by the top court that the right to claim remission does not entitle prisoners to a “right” to be released after completion of a specific term, but only infers a right to be “considered” for release through established procedures.
A perusal of worldwide statistics show that between 2000 and 2014, while formal life imprisonment sentences worldwide increased by 84 percent, in India the percentage of convicts undergoing life imprisonment has remained more or less constant, hovering between 54.3 percent and 53.5 percent from 2010 to 2019. Even though this comparison seems to be contrasting at the first glance, it needs to be kept in mind that since 2016, a new form of life imprisonment viz. sentences which place restrictions on early release or prohibit release altogether, have gained popularity in India.
While in 2013, the legislature amended the Indian Penal Code and introduced a sentence for imprisonment of life, which would mean the remainder of that persons’ natural life, no corresponding amendments were made to the CrPC, leaving the power of state governments to grant remission in such cases unfettered.
In the Sriharan verdict, however, after much consideration, a five-judge Constitution bench of the Supreme Court upheld that the Supreme Court and High Courts could substitute the death sentence, by imposing a special category of sentence, being imprisonment for life or imprisonment for a term in excess of 14 years, and putting that category beyond application of remission. The Court did, however, clarify that “a sentence of life imprisonment without remission can be imposed only in cases where the sentencing court in the first instance awarded the death penalty, and which cases have subsequently come to the High Court for confirmation”. Which again takes us to the critical question: “while it is difficult enough to judicially determine who should die, it is possibly significantly more difficult to determine who should live, but never leave the prison”.
Even though life imprisonment is often viewed as being more humane and less severe than the legislative alternative to the death sentence, those undergoing the same have a different story to tell. Life imprisonment has not only been the cause of much suffering and anxiety amongst those who undergo it and their loved ones, but also for those who are tasked with imposing or executing it. The lack of a proper legal framework for imposition of such sentences; unverified assumptions regarding early release of those undergoing life sentences coupled with the ill-founded notion of these sentences being most appropriate alternative to the death penalty are some aspects which necessitate a further discussion on whole life sentences.
As per available statistics, since 2015, 92 sentences have been awarded with some form of restriction on consideration of remission out of which 29 persons have been sentenced to whole life sentences. While such high numbers point to the growing popularity of these sentences, their implications on other stakeholders like the prisoners, their families and the system, etc., also needs to be taken into consideration.
While most European countries have abolished whole life sentences or LWOP (life without parole) as they are also called, India and China are the newest entrants in awarding punishment in the nature of LWOP. The reasons for the abolishment of these types of sentences are manifold. Such sentences are said to be contrary to the principle of rehabilitation as the International Covenant on Civil and Political Rights 1966 (ICCPR), requires State parties to “treat all persons deprived of their liberty with humanity and with respect for the inherent dignity of the human person”. The ICCPR also emphasises that the states have a positive duty to structure their penal systems with the “social rehabilitation” of sentenced prisoners as their primary objective.
The European Court of Human Rights had also recognised the right to social rehabilitation specifically for life-sentenced prisoners in Vinter and others vs United Kingdom wherein it had closely linked the right of rehabilitation with the right to hope that attached in every individual an inherent human capacity to change, to develop positively and to rehabilitate. Judge Power-Fudge in a concurring opinion given in the case had emphasised that “long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed”.
If reformation is the ultimate aim of justice, whole life sentences with no option of release serve no purpose, as they condemn a person to remain in prison for the rest of his/her life and are also an admission by the State that the said person can never be reformed, and can never be fit for “reintegration” into the society. The president of the Mechanism for International Criminal Tribunals emphasised that “the rehabilitative principle and respect for human dignity, inter alia, require that all prisoners, including those serving life sentences, be afforded both a possibility of review of their sentences and a prospect of release”. Leaving this decision as to whether a person is left to spend his entire remaining years in jail without any opportunity to revisit or review the decision at a later stage, merely at the discretion of the judges—a discretion that keeps changing with the change of the judge—seems unjust, especially in the light of the fact that there cannot be any straightjacket formula to prove that a human being is beyond reform.
Writing off people as irreformable, is inappropriate, not to miss the fact that a death sentence at least has a date when the misery would end, but in a whole life sentence, the wait can be long, excruciating and traumatic making it even more harsh than the death penalty itself. The increasing use of whole life sentences, coupled with restrictions on remission powers of the State are classic symptoms of a regressive society that has given up on its wrongdoers. It is high time that the law surrounding life sentences develops and evolves else there is a high likelihood of such sentences becoming the norm rather than exception.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi