By Dr Swati Jindal Garg
In a recent turn of events, the Supreme Court agreed to hear a plea challenging the Bihar government’s decision to prematurely release former MP Anand Mohan from jail, following an amendment in Bihar’s prison rules. Justifying the premature release of Mohan, who was sentenced to life for instigating the killing of the then Gopalganj district magistrate in 1994, the Bihar government told the Supreme Court that the status of the victim cannot be a factor in denying remission and a convict undergoing life imprisonment in a murder case cannot be denied remission just because the slain victim happened to be a public servant.
The petitioner, Uma Krishnaiah, the widow of the slain officer, on the other hand, contended that the life imprisonment awarded to the gangster-turned-politician meant incarceration for his entire natural course of life and it cannot be mechanically interpreted to just the last 14 years. “Life imprisonment, when awarded as a substitute for death penalty, has to be carried out strictly as directed by the court and would be beyond application of remission,” she said in her petition filed before the Supreme Court.
According to the affidavit filed on behalf of the Bihar government in the proceedings held before the apex court, the punishment for the murder of the general public or a public servant is the same, and the issue of premature release is governed by the provisions of the Prisons Act and the Code of Criminal Procedure. It is, however, notable that the rules that govern the remission policy in the state were amended on April 10, 2023, and Mohan, who spent less than 16 years behind bars, walked out of Saharsa jail on April 27. “The status of a victim cannot be a factor for grant or refusal of remission…the remission of the Respondent No. 4 (Mohan) was considered in accordance with the policy and as per the procedure prescribed,” said the affidavit, adding there is a limited scope of judicial interference in the state’s remission policy.
It is being argued that the 2012 prison rules were changed on April 10 to remove the prohibition against premature release of life convicts guilty of murdering public servants after heeding to a variety of relevant factors and the fact that no such distinction existed in the similar rules framed by other states such as Delhi, Punjab and Haryana. The state government justified the change by stating through its affidavit that: “The punishment for murder of general public or a public servant is the same. On the one hand, the life convict prisoner guilty of murder of general public is considered eligible for premature release and on the other hand, the life convict prisoner guilty of murder of a public servant is not eligible for consideration for premature release. The discrimination on the basis of status of a victim was sought to be removed.” The state was also quick to clarify that Mohan was released after relevant reports were favourable and that not only has he written three books during his incarceration, but has also participated in the work assigned in the jail.
Considering that Mohan walked out of prison after the Bihar government tweaked the Bihar Prison Manual—allowing life convicts involved in the murder of a public servant to be eligible for premature release after serving a sentence of 14 years—and in light of the fact that he was then a member of the legislative assembly and convicted for instigating the murder of Gopalganj district magistrate G Krishnaiah in December 1994, for which he was awarded the death sentence by a trial court in 2007, the sudden change in policy followed by his release does seem premeditated and fishy. Mohan’s death sentence was reduced to life imprisonment by the Patna High Court in 2008 which he went on to challenge in the Supreme Court, but to no avail.
The remission system has been defined under the Prison Act, 1894, to be a set of rules formulated for the time being in force regulating the award of marks to, and the consequent shortening of sentence of, prisoners in jails. It is an important aspect of the reformation and retribution principle of the criminal justice system that modern, liberal democracies like India have long strived for. It has been held in many cases that courts cannot deny a prisoner the benefit to be considered for remission of sentence, as by doing so, the prisoner would have to live in the prison till his/her last breath without there being a ray of hope to be free again. This would not just be against the principles of reformation, but will also push the convict into a dark hole without there being a semblance of light at the end of the tunnel. The fact that even though no convict has a fundamental right of remission or shortening of sentence, but the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors cannot be overlooked.
In India, the sentence of life imprisonment in certain cases, when subject to remission, normally works out to a term of 14 years. However, after the case of Union of India vs V. Sriharan (2016), where a five-judge bench of the Supreme Court adjudicated the matter, a special category of punishment can be imposed by High Courts and the Supreme Court providing for a specific term of incarceration without the possibility or opportunity of remission.
Remission does seem to be an act that takes humanity a step forward by giving another opportunity to the criminals who seem to have reformed their ways, but seen from the other side, it just looks like a loophole that is being used by criminals to get out of the much-deserved punishment meted out to them.
This is not the first time that a state government has tweaked the remission rules in order to grant remission to certain persons who seem to have political clout. The Gujarat government sometime back had granted remission to 11 men sentenced to life imprisonment for the gangrape of Bilkis Bano and the “horrendous mass murder” of her family members during the 2002 riots. The apex court had at that time stated that “there must be objective standards” for the grant of remission in the absence of which the courts would be forced to draw their own conclusions.
The Constitution of India under Articles 72 and 161 gives the president of India and the governor of a state the power to remit the sentence of a prisoner on a plea for mercy. This is the power of clemency or mercy which the Constitution entrusts just on the head of the executive. Further Sections 432 and 433 of the Code of Criminal Procedure, 1973, prescribe a procedure in which the process of remission has to be conducted by the appropriate government. When the Constitution has entrusted this power on the executive only and nowhere either in the Constitution or the Code of Criminal Procedure has a similar power been conferred on the courts, then the court would not be justified in usurping this power and conferring it on itself the authority to create new form of punishments. Further, it is the duty of the legislature, as being the representative of the people, to define crimes, prescribe the mode of procedure for their punishment and provide such disciplines and regulations for prisoners, and the courts are bound to follow and interpret the laws laid down by the legislature and not create them. The problem, however, arises when the legislature seemingly fails to perform its duty and the power to grant remission is misused.
India’s reformative criminal justice system has witnessed a considerable amount of setback time and again due to some regressive policy or judgment. Even though everyone deserves a second chance in life, yet when the same is given at the cost of justice and the well-being of the society at large, it does seem to be a mockery of the entire system and every step taken in the wrong direction takes us that much further from reaching some level of perfection.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi