To commemorate India’s 75th Independence Day, the Government of India announced a special remission scheme for the convicted prisoners. Though it is a welcome step, the provisions test the vulnerability for political misuse and ulterior advantages. The administration and reforming of prisons are critical components of criminal justice administration.
Prison is a state subject that faces numerous challenges and the most prominent of which are overcrowding and high occupancy rate. The reformative theory of the prison administration seeks to reform and rehabilitate prisoners in order to reintegrate them into society. Remission is a technique which seeks to rehabilitate the reformed prisoners. Though the term “remission” is not defined in the Indian Constitution of 1950, it essentially means ‘shortening a sentence without changing its nature’. The President of India and the Governor of States are empowered by the Indian Constitution to pardon, suspend, remit, or commute sentences delivered by the Indian Courts.
According to the Prison Statistics in India 2020 (published by the National Crime Record Bureau, Ministry of Home Affairs, GoI), there are 488,511 prisoners lodged in 1,306 prisons across India and the occupancy rate is 118 % and composed of under-trials (371,848), detenues (3,590), convicts (112,589) and inmates (484) as at December 31, 2020.
The state of Uttar Pradesh holds the record for highest overcrowding (117%) in prisons, followed by Sikkim (173.8%) and Uttarakhand (168.6%) and in the Union Territories, Delhi takes the lead with the highest number of prisoners (159.5%). Out of the 488,511 prisoners, 468,395 are males, while 20,046 are females and the number of transgender prisoners is 70.
Out of the 488,511 detainees in the prisons, the number of convicted prisoner’s stands at 112, 589, which includes 1,140 convicts are from various countries away from India. The state of Uttar Pradesh has the largest number of convicts with 26,734, followed by Madhya Pradesh (13,652) and Bihar (7,741). 65% of the convicts are lodged in central jails, whereas 27% in district jails and the rest are in open prisons. It is worthwhile to note that there are 214 female convicts who are living with 246 children within prisons as at December 31, 2020.
The Indian Government launched the first remission scheme to commemorate Mahatma Gandhi’s 150th birth anniversary in three phases: First phase on October 2, 2018 (Birth Anniversary of Mahatma Gandhi), Second Phase on April 10, 2019 (Anniversary of Champaran Satyagraha), and Third Phase on October 2, 2019 (Mahatma Gandhi’s Birth Anniversary). More than 900 prisoners were pardoned, and it was a commendable step toward addressing the concerns of criminal justice reforms.
To commemorate the 75thanniversary of India’s independence, the Indian Government under Azadi ka Amrit Mahotsav also announced a special remission scheme for the convicted prisoners. The prisoners subject to remission were released in three stages: on August 15, 2022 (Phase 1-75th anniversary of Independence Day), January 26, 2023 (Phase 2 – Republic Day), and August 15, 2023 (Phase 3 – Independence Day).
The eligibility criteria for this special amnesty scheme are that the convict has no record of punishment during the conviction period or in the previous three years. Women and transgender convicts over the age of 50, and men over the age of 60, who have served half of their total sentence period are eligible for this special remission scheme. Physically challenged convicts with a disability of more than 70 percent who have served half their total sentence are also eligible. Terminally ill convicts and poor/indigent convicts who have completed their sentence, but lodged in prisons due to non-payment of fines, convicts who committed an offence at a young age, i.e., between 18-21 years with no other criminal involvement, and have completed half their sentence period or any other convicts who have completed two-thirds of their total sentence period are also eligible to avail this special remission scheme. This special remission scheme also applies to foreign convicts upon recommendation by the Ministry of External Affairs of the Government of India.
The Gujarat state government released a convicted rapist and murderer in Bilkis Bano case, witnessed a widespread turmoil, and thus the reformist potential of the scheme are thus vulnerable for political misuse and ulterior advantage.
The Women Safety Division of the Ministry of Home Affairs has issued detailed guidelines to the Principal Secretaries and DG/IG of all States and Union Territories on the constitution of a three-member State-Level Screening Committee. The Committee will be chaired and composed of officials from the Home Department and the Department of Law and Justice in the concerned State and Union Territory. The DG/IG of the respective State and Union Territory will be designated as Member Secretary/Secretaries.
Death sentenced (507 convicts as at December 31, 2020) and life imprisoned/ sentenced (69,656 convicts as at December 31, 2020), as well as convicts under special laws, such as TADA, POTA, UAPA, Explosive Substance Act of 1908, National Security Act of 1982, Official Secrets Act of 1923, Anti-hijacking Act of 2016, Prevention of Money Laundering Act of 2002, FEMA, Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act of 2015 and persons convicted under NDPS (Narcotic Drugs and Psychotropic Substances) Act cannot avail this special remission scheme.
Moreover, convicts of rape (12,631 convicts as at December 31, 2020), human trafficking, POCSO, and the Immoral Traffic (Prevention) Act of 1956, are also barred from availing this special remission scheme.
Convicts of the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act of 2005, Corruption, or offence against the State are also not pardoned, thus, they are not included in this special remission scheme. The respective State Government and Union Territory also hold the authority to exclude any category of convict from consideration for this special remission scheme.
In commemoration of Azadi ka Amrit Mahotsav, this special remission scheme for the convicted prisoners turn a new leaf in addressing the concerns of prison reforms through reformative theory of prison administration and that the provisions test the vulnerability for political misuse and ulterior advantages.
Kaustav Choudhoury
(Kaustav Choudhoury is an Assistant Professor-I at Amity Law School, Amity University, Uttar Pradesh (Noida), India. He has submitted his Ph.D Thesis at North Eastern Hill University (A Central University) India, titled “Human Rights in India: A Study of the Elderly Persons”. Before joining Amity University Noida, he was associated with Rashtriya Raksha University (India’s first Internal Security University) under the Ministry of Home Affairs, Government of India. His latest publication includes contribution for Indian Council for Social Science Research (ICSSR).The author can be reached at lawkaustav@gmail.com/ (+91) 7636872033).
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