Explained | Supreme Court's powers to release convicts

While the Supreme Court can release convicts based on Article 142, the process of remission involves the President or Governor

The Supreme Court's order releasing six convicts serving life sentences in the Rajiv Gandhi assassination case has brought to light the apex court's powers to release convicts.

On November 11, the Supreme Court had ordered the release of six convicts who were serving life sentences in the Rajiv Gandhi assassination case. The release of the convicts, including Nalini Sriharan, resulted in strong pushback by the Congress, which called the order "erroneous" and "wholly untenable".

In its order, the court said its previous order releasing another convict A G Perarivalan under Article 142 of the Constitution was applicable to them as well.

The court had invoked its extraordinary powers under Article 142 of the Constitution on May 18 in its release of Perarivalan, who was also sentenced to life in the assassination case.

The process for the release by the Supreme Court in the case was fairly simple. It invoked Article 142, which gives the court powers to pass a decree or order as necessary for doing complete justice in any cause or matter pending before it.

Remission vs SC's powers under Article 142

In the Bilkis Bano gang-rape and murder case, 11 convicts who were serving life imprisonment were released after they were given remission on grounds of good behaviour. However, the process of granting remission, which is applicable only to convicts serving life sentences, is trickier.

A life sentence is applicable until the death of a convict, but the law governing the sentence also contains a provision that allows convicts to be released after serving at least 14 years.

Unlike furlough or parole, which are just a brief break from prison life, a remission is, in effect, a reduction of one's sentence.

As per the Prisons Act, 1894, the remission system means a "set of rules formulated for regulating the award of marks to, and the consequent shortening of sentence of, prisoners in jail".

It was observed in the Kehar Singh vs. Union of India (1989) case that courts cannot deny to a prisoner the benefit to be considered for remission of sentence. The policy was also observed by the Supreme Court in the case of State of Haryana vs. Mahender Singh (2007), where it said that even though no convict has a fundamental right of remission, but the state in exercise of its executive power of remission must consider each individual case.

According to the law, the President and the Governor have been vested with the power to issue pardon or remission by the Constitution.

Under Article 72, the President can grant remissions or commute the sentence of any person. This can be done for any person convicted of any offence in all cases where the punishment or sentence is by a court-martial, or if the sentence is for an offence under any law relating to the Union government’s executive power, and in all cases of death sentences.

The Governor's power of remission falls under Article 161, which applies for anyone convicted under any law on a matter which comes under the state’s executive power. The Governor, however, cannot commute the death penalty.