Thinkers like G.W.F Hegel have often argued that the criminals are to be punished for the offence they have committed, yet they have the right to be honoured as rational beings when the authorities inflict the punishment on them. The criminal justice system across the globe has come a long way from using punishment for instilling fear is the populace to understanding punishment as a species of secular penance, that aims to persuade offenders to repentance, serf-reform and reconcile. India too has taken several positive steps in this direction however the Indian Supreme Court’s recent unearthing of a regressive punishment and reintroducing it in today’s time has taken us a step backwards in our thrive to achieve a modern, reformatory criminal justice system. 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 Hon’ble Supreme Court of India adjudicated the matter, a special category of punishment can be imposed by the concerned High Court and the Supreme Court providing for a?specific term of incarceration without the possibility or opportunity of remission.

The Journey from Deterrence to Reformation

In India, the earlier notions of prison as a facility in which convicts were forcibly held by depriving their freedom and liberty as a form of punishment changed with a change in social perception towards prison and prisoners. This change was evident from India abandoning some of the severe forms of punishment and introducing a system, which awards prisoners for their good work, good conduct in the form of remission, review of sentence, wage of labour etc. Also the Constitution of India under Article 20 and 21 have afforded various safeguards to prisoners, and these safeguards and rights have been expanded to include almost all fundamental and human rights by various rulings of the Supreme Court of India and also several High Courts. Further India has also ratified various international treaties like the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESR) which encompasses an obligation on the member states to afford the prisoners the right to the highest attainable standards of physical and mental health. Recently in the year 2016, a new model prison manual was
finalised with the approval of the Ministry of Home Affairs, Government of India and was circulated to all states and union territories for guidance. The new prison manuals key focusses were to bring uniformity in the laws, rules and regulation that govern prison administration and also emphasised rights of prisoners, repatriation of prisoners, prisoners correctional schemes etc.

Despite India’s continuous efforts in creating a reformative criminal justice system, the invention of a special category of punishment by the Supreme Court in the V. Sriharan case which takes away the opportunity and the option of remission from a prisoner is nothing but a step taken backwards which also violates various principles enumerated in the Indian Constitution and is against the basic tenets of the modern criminal justice system.

The Right to Remission

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 Jail. It is an important aspect of the reformation and retribution principle of the criminal justice system that modern liberal democracies like India have long thrived for. It was observed in the Kehar Singh vs. Union of India (1989) case thatCourts cannot deny to 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 Supreme Court also in the case of State of Haryana vs. Mahender Singh and Others (2007) observed 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. Further, the Court was also of the view that a right to be considered for remission, keeping in view the constitutional safeguards for a convict covered under Articles 20 and 21 of the Constitution, must be held to be legal one.

The exercise of power of releasing a prisoner on remission, must not be looked upon as an act of charity or compassion, but as an act in the discharge of a legal duty required to be performed upon the fulfilment of the prescribed conditions to effectuate a salutary purpose, since remission is earned by a prisoner based on his/her good conduct in the prison and not is something that he/she begs for. When there is a legal duty, there exists a right for the other party for whom the duty exists. As observed by Wesley Newcomb Hohfeld in his book titled Fundamental Legal Conceptions as Applied in Judicial Reasoning, in any legal relation between two parties concerning a single act or omission, the presence of one conception in one party entails the presence of the correlative in the other party. A person has a right only because some other person has a duty that correlates to that right. One cannot exist without the other. They represent the two aspects of one relation. For instance, if A has a right that B pays him 100 rupees under the contract; B has a duty to pay A 100 rupees. Thus if there is a legal duty for the appropriate authority to grant remission to a prisoner on fulfilment of prescribed conditions, there automatically exists a legal right to remission for the prisoner upon the fulfilment of prescribed condition.

Even the European Court of Human Rights in the famous case of Vinter and others vs. the United Kingdom (2009), where the applicants who were convicted for the offence of murder and were serving a sentence of life imprisonment for the whole life, challenged there sentence before the Grand Chambers of the European Court of Human Rights. The Court was of the view that even though the States had the discretion to determine the appropriate lengths of sentences, they are not to be “grossly disproportionate” to the offences committed and that based on several European and international laws, it is a settled principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved. Drawing on these sources, the Grand Chamber concluded that it would be a violation of human dignity to detain someone without any chance of release.

Usurping the power to Remit: An abuse of the Separation of Power doctrine

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 of India entrusts just on the head of the executive. Further Sections 432 and 433 of the Code of Criminal Procedure, 1973 prescribes 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 bejustified 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 representatives of the people, to define crimes, prescribe the mode of procedure for their punishment, and to provide such disciplines and regulations for the prisoners and the Courts are bound to follow and interpret the laws laid down by the legislature and not create them. Even the United States of America, being the oldest constitutional democracy of the world, has time and again recognised that the powers to define crimes, to prescribe the mode of procedure for their punishment, and to provide such discipline and regulations for prisoners is within the ambit of legislative powers and the Courts are bound to follow that.

Arguing from a more liberal point of view also, even though the idea of judge made laws are widely accepted, but it also is an accepted fact that such judge made laws cannot go against the basic tenets of the Constitution and the basic? rights of an individual. Such an overstepping is not just violative of the doctrine of separation of power embodied in the Constitution but is also against Article 21 of the Constitution of India, which guarantees life and liberty to? each and every person, as punishment in any form is a curtailment of liberty and such a limitation can only be imposed by the procedure established by law i.e. a law passed by the Parliament.

The Way Forward

India has long thrived for achieving a reformative criminal justice system which has witnessed a considerable amount of setback time and again due to some regressive policy or judgements, the special category punishment laid down in the V. Sriharan case being a recent example. While the special category punishment can definitely be challenged before and deliberated upon by a higher bench of the Supreme Court, however a more considerable approach would be for the Committee for Reforms in Criminal Law, recently set up by the Union Ministry of Home Affairs, to take up cognizance on the matter and suggest legislative changes in terms of declaring it to be a right of a prisoner to be considered for remission and encompassing a duty on the executive to grant remission on the fulfilment of prescribed conditions. In this context, we definitely can learn from the United States of America where the Courts have the power to impose something called as an indeterminate sentence, a term of imprisonment with no definite duration, where a trained parole board has the power to release a prisoner after they show themselves fit for membership in a free community. This scheme emphasises upon the reformation of the prisoner instead of trying to break his/her will and make him/her submissive.

The supreme aim of our prison discipline should be the reformation of criminals, and that there must be in every prison a well-devised and skilfully applied system of rewards for good conduct of prisoners. The main purpose of any punishment must be to strengthen the prisoner’s will to do what’s right and lessen his/her temptation to do what is considered to be wrong rather than restraining him/her until a definitive term, as such a sentence has no possibility of reconciling the convict rather in most cases the convict is discharged more the foe of mankind than before.

The author is a final year law student at Jindal Global Law School, Sonepat, Haryana. Views expressed are personal.