Amaravati,
21/01/2025.
To
G. Prathibha Devi,
Secretary to Government,
Law Department (L A & J),
Andhra Pradesh
Sub: Request to liberalize the life convicts premature release guidelines in line with the statutory and judicial pronouncements.
Mam,
The Human Rights Forum (HRF) is a citizens’ forum established with the objective of working for the protection of the constitutionally guaranteed/internationally recognized rights of the people.
As the government is gearing to release prisoners from various prisons of Andhra Pradesh on remission on the Republic Day on January 26, 2025, we would like to bring to your notice the necessity to liberalize one aspect of the premature release of prisoners – premature release of life convicts whose death sentence was commuted.
According to the information we have, there are 8 prisoners in the prisons of Andhra Pradesh who have completed 20 years of sentence as of September 2021. Out of them 3 are of the category whose death sentence was commuted to life imprisonment. The three are listed below.
a) S. Chalapathi Rao, Prisoner Number – 4169, Nellore Central Jail
b) G. Vijaya Vardhana Rao, Prisoner Number – 1003, Rajamahendravaram
c) M.T. Krishna Kutty, Prisoner Number – 8816, Rajamahendravaram Central Jail
Among the above, Chalapathi Rao and Vijaya Vardhana Rao were convicted in the Chilakaluripeta Bus Burning incident that happened in 1993. They were convicted to death in 1995, and their sentence was commuted to life imprisonment by the then-President of India, K.R. Narayanan, in 1998 under Article 72 of the Constitution of India.
A consistent policy for premature release of prisoners in Andhra Pradesh was announced through G.O.MS.No.58, dated 16.03.2023, following the orders of the Supreme Court in Sonadhar v/s State of Chhattisgarh. While various categories of prisoners were earmarked for the release in the policy, there was also exceptions provided to other categories of prisoners who were declared to be ineligible for the release. We are concerned with one section of prisoners in this category.
According to para 4 in the policy, 23 categories of prisoners were declared to be ineligible for the premature release. Among them, we want to highlight the unjustness of ineligibility of one category.
Point 16 of para 4 in the G.O. states-
The life convicts sentenced to death sentence. which is later commuted to life sentence.
We believe that this exception violates the principles of natural justice, and also, the law of the land, including judicial pronouncements.
Section 433-A of the Criminal Procedure Code (CrPC) statutorily deals with the premature release of life convicts. The section states-
Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by laws or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least 14 years of imprisonment.
Similarly, the National Human Rights Commission (NHRC) in a circular issued to the states and union territories in 2003 stated, among things, that-
Section 433A was enacted to deny premature release before completion of 14 years of actual incarceration to such convicts as stand convicted of a capital offence. The commission is of the view that within this category a reasonable classification can be made on the basis of the magnitude, brutality and gravity of the offence for which the convict was sentenced to life imprisonment. Certain categories of convicted prisoners undergoing life sentence would be entitled to be considered for premature release only after undergoing imprisonment for 20 years, including remissions. The period of incarceration inclusive of remissions even in such cases should not exceed 25 years.
Remission Policy at the time of conviction
We would also like to bring to your notice, particularly relating to Chalapathi Rao and Vijaya Vardhana Rao, that when they were sentenced to death in 1995, the prevailing policy for remission at that time had not excluded the ‘death sentence-commuted-to-life imprisonment’ from the remit of remission. The prevailing policy at the conviction in 1995 was the G.O.MS.No.4, issued on 17.01.1995. Even if it is argued that their conviction should be considered from the time their death sentence was commuted to life imprisonment, which was in 1998, the prevailing policy for remission at the time under G.O.MS.No.193, issued on 11.08.1997, did not have the exclusion of this particular category of prisoners from premature release.
It is a settled principle of law that while considering prisoners for premature release under the remission policy, the policy that was in force during their conviction should be considered.
In Rajkumar v/s State of Uttar Pradesh (2023), the then-Chief Justice of India (CJI)-led bench of the Supreme Court held that, “It has been held that the case of a convict for premature release is governed by the applicable policy on the date of conviction.”
Supreme Court has been reiterating it over the years in State of Haryana v/s Jagadeesh (2010), State of Haryana v/s Rajkumar (2021), Rashidul Jafar v/s State of Uttar Pradesh (CJI-bench) (2022), Joseph v/s State of Kerala (2023).
It is also a settled principle of law that if a subsequent policy was framed which is more liberal than the existing one, the latter be generally considered. This has been reiterated multiple times by the Supreme Court of India.
In Hitesh v/s State of Gujarat (2023), the-then Chief Justice of India-led bench of the Supreme Court held that, “In determining the entitlement of a convict for premature release, the policy of the State Government on the date of the conviction would have to be the determinative factor. However, if the policy which was prevalent on the date of the conviction is subsequently liberalised to provide more beneficial terms, those should also be borne in mind.”
It is clear from these that the decision on whether to release Chalapathi Rao and Vijaya Vardhana Rao ought to hinge on G.O.MS.No. 4 of 1995, rather than G.O.MS.No. 58 of 2023.
Nature of the crime
It cannot be gainsaid that the two aforementioned convicts committed a crime that resulted in loss of many lives. They were convicted precisely for that. However, the question is about how just it would be to deny them release after they have spent nearly 32 years in prison citing the gravity of the crime? Doing so would be privileging victimology over penology, including the role of reformative justice. Both Chalapathi Rao and Vijaya Vardhana Rao have been in prison for more than 3 decades, during which they have reformed themselves, attained various educational degrees, received accolades from the prison authorities for their reformative and restorative work. The settled law of the land, too, states the same.
In Jospeh v/s State of Kerala (2023), the Supreme Court held that, “The practical impact of a guideline, which bars consideration of a premature release request by a convict who has served over 20 or 25 years, based entirely on the nature of crime committed in the distant past, would be to crush the life force out of such individual, altogether.”
Similarly, in Rajo v/s State of Bihar (2023), the Supreme Court held that, “Apart from the other considerations (on the nature of the crime, whether it affected the society at large, the chance of its recurrence, etc.), the appropriate government should while considering the potential of the convict to commit crimes in the future, whether there remains any fruitful purpose of continued incarceration, and the socio-economic conditions, review: the convict’s age, state of heath, familial relationships and possibility of reintegration, extent of earned remission, and the post-conviction conduct including, but not limited to – whether the convict has attained any educational qualification whilst in custody, volunteer services offered, job/work done, jail conduct, whether they were engaged in any socially aimed or productive activity, and the overall development as a human being.”
Various High Courts, too, have relied on this principle of reformative and restorative justice to suggest the releasing of prisoners, without taking into account the nature of the crime they were involved in.
For instance, in Hari Singh v/s State of NCT of Delhi (2023), the Delhi High Court held that, “To deny the benefit of remission to a convict, solely on the basis of the nature of crime committed, and without appreciating other parameters including but not limited to the convict’s age, health and socio-economic condition and family relations, his postconviction conduct, jail conduct etc., would not serve the ends of justice.”
In fact, the Supreme Court has been reiterating it for many decades. For instance, in Maru Ram v/s Union of India (1981), the court held that, “If law–S. 433-A in this case–rudely refuses to consider the subsequent conduct of the prisoner and forces all convicts, good, bad and indifferent, to serve a fixed and arbitrary minimum it is an angry flat untouched by the proven criteria of reform.”
Similarly, in Satish v/s State of Uttar Pradesh (2020), the court held that, “It would be gainsaid that length of the sentence or the gravity of the original crime can’t be the sole basis for refusing premature release. Any assessment regarding predilection to commit crime upon release must be based on antecedents as well as conduct of the prisoner while in jail, and not merely on his age or apprehensions of the victims and witnesses.”
The court, once again, held the same in Munna v/s State of Uttar Pradesh (2020). Here the court held that, “Rather, there is only a mention that the crime that the petitioner was involved in is heinous, and there is no appreciation of the record to suggest whether he is likely to abstain from crime and lead a peaceable life.”
As we have mentioned previously, these two prisoners have reformed themselves, attained various education degrees, and have taken a reformative path while in prison for more than 3 decades. They would be more useful for the overall good of society by being outside the prison than inside.
Duration of the imprisonment
While it is a settled principle that life imprisonment would mean till the end of the natural life, the provision of premature release was introduced precisely to make sure that the prisoners don’t rot away in prisons forever. It would not be an exaggeration to say that the statutory 433 A of the CrPC suggesting release after a minimum of 14 years in prison, and the NHRC guidelines clearly batting for the release of a prisoner after 25 years in prison were incorporated keeping this humanitarian principle in mind.
As we have said before, Chalapathi Rao and Vijaya Vardhana Rao have spent nearly 32 years in prison, including temporary remissions before. That is way more than the 25 years suggested by the NHRC and more than double the minimum of 14 years in the CrPC.
We would like to bring to your notice that the people convicted for killing the former Prime Minister of India, Rajiv Gandhi, were let out of the prison by the Supreme Court citing their three decades of imprisonment.
In A.G. Perarivalan v/s State of Tamilnadu (2022), the court held that, “Taking into account the Appellant’s prolonged period of incarceration, his satisfactory conduct in jail as well as during parole, chronic ailments from his medical records, his educational qualifications acquired during incarceration, In exercise of our power under Article 142 26 | P a g e of the Constitution, we direct that the Appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991.” This was upheld by the same court in R.P. Ravichandran v/s State of Tamilnadu (2022).
We urge you to take into consideration their duration of imprisonment, reformation inside the prison, their educational achievements amidst extreme adversity and uncertainty, the humanitarian principled basis of the rulings of the constitutional courts of the country and delete the clause that says that the convicts whose death sentence was commuted to life sentence were exempt from the premature release policy, and set free all the prisoners who have completed 20 years of imprisonment.
As a gesture on the 75th anniversary of the Constitution of India coming into force, we hope that the government, keeping in spirit of the constitution, gives a new lease of life for the prisoners.
Thanking You,
Y. Rajesh (HRF Andhra Pradesh State general secretary)
G. Rohith (HRF Andhra Pradesh State secretary)