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Dear Friends,

We the people of Tamilnadu and India are proud of our country and its leaders upholding democracy, the rule of law and the fundamental rights enshrined in our constitution. In spite of grave issues we have gone through decades since independence we have steadfastly upheld to robust democratic norms and a strong civil society. 

However, it is a pathetic fact that we have yet to abolish the numerous odious remnants of colonial past still lingering on to our present. One such dread of the past weighing on our aspirations for democratic norms is Section 53 of Indian Penal Code which came into force in 1860. The section for the first time in the history of the sub – continent, rigidly codified the modes of punishment as applicable to offences committed in our country.

Among its list of punishments, first comes the death penalty and then follows a now almost forgotten thing of the past – “transportation”. To get a vivid picture of what this “transportation” means in practice, it will be worth quoting in full, the words of the author of the Draft Penal Code, Thomas Babington Macaulay:

“The pain that is caused by punishment is unmixed evil. It is by the terror which it inspires that it produces good; and perhaps no punishment inspires so much terror in proportion to the actual pain which it causes as the punishment of transportation in this country. Prolonged imprisonment may be more painful in the actual endurance; but it is not so much dreaded beforehand; nor does a sentence of imprisonment strike either the offender or the bystanders with so much horror as a sentence of exile beyond what they called the Black Water. This feeling, we believe, arises chiefly from the mystery which overhangs the fate of the transported convict. The separation resembles that which takes place at the moment of death. The criminal is taken forever from the society of all who are acquainted with him, and conveyed by means of which the natives have but an indistinct notion, over an element which they regard with extreme awe, to a distant country of which they know nothing and from which he is never to return. It is natural that his fate should impress them with a deep feeling of terror. It is on this feeling that the efficacy of the punishment depends and this feeling would be greatly weakened if transported convicts should frequently return, after an exile of seven of fourteen years, to the scene of their offences, and to the society of their former friends.” (Italics added)

The callous expression of the author of the Draft Penal Code – the same Macaulay, famous for his “Minute on Indian Education” – describes exactly what the sentence of “transportation” would amount to in colonial penal performance – instill terror among the populace. The Indian Penal Code which finally came to force in 1860, after careful revisions contained all the elements of what it was to take in its transformed manifestation in independent India.

Section 55 conferred the authority of granting clemency to both the Government of India and the Government of the place (meaning provinces) for a term not exceeding 14 years. Section 57 limited the fraction of terms of the punishment to 20 years. Section 58 acknowledged that the years spent in prison until the offender was transported shall be considered part of the punishment term.   

It was clarified in relevant sections that the punishment of transportation was for the full remaining life of the offender except in two instances. According to section 121A dealing with conspiracy, the offender can be sentenced to transportation for life or “any shorter term”. Section 124A dealing with sedition, can punish the offender with transportation for life or for “any term”. The two sections were introduced by an Amending Act of 1870.

Further, section 368(2) of the Code of Criminal Procedure, 1898, cautioned that no sentence of transportation should specify the place to which the person sentenced was to be transported. But it was an open secret – the only place to which the “offenders” of the Raj, were transported, which Macaulay obliquely refers to as the place “beyond what they called the Black Water” were the Andaman Islands.    

These were the principal elements on whose grounds the convicted prisoners’ counsels were to contest its future manifestation in independent India. In fact, before the country was to gain independence, in the year 1944, the Judicial Committee of the Privy Council in a judgment observed in clear terms what exactly the punishment “transportation for life” meant in practice in India: “… at the present day transportation is, in truth, but a name given in India to a sentence of life …” (Pandit Kishori Lal v. King Emperor, 1944) (Italics added)

Upon independence, the transformation of “transportation” to “imprisonment for life” was achieved in a single stroke on the passing of the Code of Criminal Procedure (Amendment) Act in 1955. The act inserted a new section 53A which ran as follows:

“53A. (1) Subject to the provisions of sub – section (2) and (3) , any reference to “transportation for life” in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or of any enactment repealed shall be construed as a reference to “imprisonment for life”.

While the possibility of commuting the sentence and the fractions of terms of the punishment were retained as under Sections 55 and 57 respectively, the Code of Criminal Procedure enacted in 1973 again introduced the option of clemency in its section 433 which ran thus:  

“The appropriate Government may, without the consent of the person sentenced, commute-

(a) a sentence of death, for any other punishment provided by the Indian Penal Code;

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine.”

Complementing this rule, the Supreme Court in its various decisions had also laid down specific guidelines as per Article 161 ofthe Constitution which conferred upon the Governors the following power:

“The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends”.

Adhering to these guidelines, various state governments have followed a liberal attitude towards prisoners serving life sentences, including political prisoners. In Kerala, prisoners serving life sentence are released in 7 years and in Andhra Pradesh 5 years. The Uttar Pradesh government, during the period of Ms. Mayawathi, released 10,000 prisoners on the eve of Shree. Kanshiram’s birthday. The state governments of Maharashtra, West Bengal and Karnataka too recommend the release of life sentence prisoners at an early stage. 

 However, the change in political sensibilities in the wake of the global “war on terror” has contributed to a change of emphasis from clemency to the “technically correct” interpretation of the life sentence in recent times. Reflecting this change, a recent “advisory note” sent by the Ministry of Home Affairs to the State governments, quoting passages from the Supreme Court judgment of Justices K.S. Radhakrishnan, Dipak Misra (Sangeet & Anr. vs State of Haryana, 2012) has reiterated the precise nature of life imprisonment and cautions against the granting of clemency on “wholesale manner” in the following terms:

“There is a misconception that a prisoner serving a life sentence has an indefeasible right to release on completion of either fourteen years or twenty years imprisonment. The prisoner has no such right. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under section 432 of the Cr. P. C which in turn is subject to the procedural checks in that Section and the substantive check in Section 433-A of the Cr. P. C…

If the term of sentence is indefinite (as in life imprisonment), the power under section 432 of the Cr. P. C can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment.

            Before actually exercising the power of remission under Section 432 of the Cr. P. C the appropriated Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remission can, therefore, be given only on a case-by-case basis and not in a wholesale manner.

It is hence requested that States/UTs while considering the grant of remission in cases where a death sentence has been commuted to imprisonment of life or where a sentence of imprisonment for life is imposed for which death is one of the punishments prescribed by law, it should scrupulously follow the check prescribed u/s 433 A of the Cr. P. C and also not grant remission in a wholesale manner. (Italics as in the document) (Ministry of Home Affairs, CS Division, No. V-17013/2/2013-PR)

The emphasis laid upon urging the state governments to tread with utmost care while invoking the laws related to clemency, and stressing the point that imprisonment for life is “to remain in custody till the end of life” parallels the “life without parole” mode of sentence which has drawn considerable criticism in the US. It also reflects the current tendency world wide of invoking life sentences more frequently as an alternative to death penalty.

The international movement against death penalty has certainly played a significant role in the increase of life imprisonment sentences all over the world. As many countries move towards the abolition of the death penalty, a striking increase in the number of life sentences passed by the courts is the direct consequence. A recent instance illustrating this trend in India is the case in which 17 persons en masse were “awarded” life sentence by a Sessions Court in Patna in April 2013.

According to statistics released by the National Crime Records Bureau, for the year 2013, 53.6% (68,935 inmates) of the total convicts in Indian prisons were undergoing life imprisonment. The report further breaks this over all percentage listing the number of states that exceed the national average: “In 14 States and 2 UTs, the share of convicts undergoing life imprisonment was more than the national average of 53.6% . These States/UTs were Daman & Diu (100.0%), Jharkhand (75.4%), Puducherry 71.5%), Chhattisgarh (70.3%), Madhya Pradesh (65.8%), Andhra Pradesh (65.4%), Maharashtra (65.3%), Bihar (63.7%), Manipur (62.5%), Karnataka (62.0%), Rajasthan (61.0%), Assam (59.7%), Tamil Nadu (57.6%), Jammu & Kashmir (56.1%), Tripura (55.0%) and Sikkim (54.3%).” (Prison Statistics in India, 2013 National Crime Records Bureau, pg: 117)

The alarming increase in the number of persons detained under life imprisonment unfortunately has not attracted the attention of scholars or international bodies engrossed with death penalty. The only international document that refers specifically to life imprisonment is the 1994 UN Crime Prevention and Criminal Justice Branch’s report “Life Imprisonment” which makes a number of recommendations for consideration by national jurisdictions. It proposes that individuals sentenced to life imprisonment should have the right to appeal and to seek pardon or commutation of sentence and states should take the possibility of release as primary concern.

The report also refers to the acute psychological stress suffered by the life prisoners similar to those condemned to death penalty. It states that, “Prisoners sentenced to life imprisonment may suffer from psychological and sociological problems that may cause desocialisation and dependence, which are harmful to the health of the individual prisoner…. The lifer, though he may know the average sentence, can never count on release until it is actually granted. This uncertainty weighs heavily on lifers, for in some cases the whole of their future lives are at risks from moment to moment; they can never know that they have not condemned themselves to a vastly extended term in prison because of one momentary aberration.” (Life Imprisonment, pg: 24)

Life imprisonment undermines the inherent right to life which has been included as a basic right in most of the constitutions. Infringing this inherent right to life, life sentence locks up a prisoner for his whole natural life without any hope of release which amounts to another form of death sentence.

The conditions of detention for life imprisonment prisoners, in addition to the indeterminate nature of the sentence, have a deep impact on prisoners that are both sociological and psychological. Life sentence prisoners are singled out from the rest for harsh treatment in most countries. They are also subjected solitary confinement or forced upon to suffer conditions of semi – isolation limiting their movement and interaction with other prisoners.

In extreme cases, prolonged and indefinite imprisonment has been found as the cause of prison suicides. A review conducted by the Chief Inspector of Prisons in England and Wales concluded that life sentenced prisoners are prone to commit suicides than prisoners belonging to other categories. Another study conducted by the Prison Reform Trust found that “the risk of suicide was twice as high as the average prisoner population.”

The very impact of removal from the social environment results in the loss of ability to interact socially, even with family and friends. As a consequence, prisoners develop negative coping mechanisms like emotional withdrawal which causes loss of responsibility and increased dependence on the penal institution.

Confining prisoners for life in the belief that prisons are the panacea to problems of crime and social control, in its essence, is a failure to address to the structural roots of crime and violence. In the prevailing conditions of our society, even after the release of prisoners they are not truly free. They re-enter the society with the stigma of a life sentence prisoner. This stigma remains attached to the remaining of their entire life. The possibility of ending up in prison again lingers heavily above their heads. Even their families bear the brunt of social ostracization.

To put an end to this unending cycle of crime, violence, confinement, inhuman treatment, and social ostracization, the guiding principle of sentencing should take a decisive break from retribution and move towards rehabilitation. Sentences should provide meaningful opportunity for rehabilitation and reintegration back into society. The prisoners should be able to start their lives anew as law abiding citizens after their release.

It is significant in this context to note that, article 10 (3) of the ICCPR, states that, “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” This is essentially a plea for providing the opportunity for them to be rehabilitated into society and lead self supporting lives as law abiding citizens.

Responding to such pleas for a change of orientation in penal policy, the Council of Europe declared as early as 1977 that “it is inhuman to imprison a person for life without the hope of release,” and that it would “be compatible neither with modern principles on the treatment of prisoners … nor with the idea of the reintegration of offenders into society.”

The German Federal Constitutional Court held in 1977 that, “The prison institutions also have the duty in the case of prisoners sentenced to life imprisonment, to strive towards their resocialization, to preserve their ability to cope with life and to counteract the negative effects of incarceration and destructive personality changes that go with it. The task that is involved here is based on the constitution and can be deduced from the guarantee of the inviolability of human dignity contained in article 1(1) of the Grundgesetz.”

In 1991, the High Court of Namibia, presided by Judge Levy declared that “[Life imprisonment] removes from a prisoner all hope of his or her release. When a term of years is imposed, the prisoner looks forward to the expiry of that term when he shall walk out of gaol a free person, one who has repaid his debt to society. Life imprisonment robs the prisoner of this hope. Take away his hope and you take away his dignity and all desire he may have to continue living. Article 8 of the [Namibian] Constitution entrenches the right of all people to dignity. This includes prisoners. The concept of life imprisonment destroys human dignity reducing a prisoner to a number behind the walls of jail waiting only for death to set him free.”

Judge Ackerman in the case of S v Dodo (2001) in the South African Constitutional Court reasoned that, “Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence… the offender is being used essentially as a means to another end and the offender's dignity assailed.”

Brazil, Colombia, Croatia, El Salvador, Nicaragua, Norway, Portugal, Spain, Slovenia, and Venezuela have made provisions for the prohibition of life imprisonment in their penitentiary systems.

In contrast to such a slow but sure trend against life imprisonment in the international arena, our country is lagging far behind in penal policy on life imprisonment. As the statistics from the National Crime Records Bureau point out, more than half of the prison population (53.6%) is serving life sentences. At this juncture we would like to draw attention in particular to a more disturbing tendency that is currently pursued in Tamil Nadu.  

Tamil Nadu with 57.6% of its prison inmates under life imprisonment is well high beyond the national average. The demographic particulars at the end of 2011 reveal that 12.9 % convicts, 12.27% under trials, and 16.68% detenues of the overall prison inmates are Muslims. According to the 2011 population census for Tamil Nadu, Muslims constitute 5.56 of the population. Though demographic statistics for life imprisonment prisoners are not available, the above data clearly states the message. The percentage of Muslims in prison is double their percentage of their population i.e., 200% and in the case of detenues it is more than thrice, i.e., 300%

Compounding this, severe discriminatory practices are held towards prisoners of the Muslim community. This prevails, in spite of the harmonious attitude shown towards Muslims by all the major parties and leaders of our state. The principal reason for this sorry state of affairs is the discriminatory attitude strongly entrenched within the bureaucracy. 

In 2008, the state government ordered the release of 1405 life sentence prisoners, who had spent 7 years of imprisonment. But not a single prisoner from the Muslim community was released following the state government’s order.  The then Director General of Prisons – Tamil Nadu, Mr. Sekar, sent a letter to the Home Secretary, requesting the exclusion of prisoners from the Muslim community under this general pardon, citing the reason that their cases fall under communal violence. (Ref. letter No. 397712/PS1/2007 dt. 10. 09. 2007). The said letter was accepted by the Home Secretary and an order was issued to the prison department in letter No. 84862/Pri. IV dt. 12. 09. 2007 with specific instructions to withhold the release of prisoners belonging to the Muslim community.

The above said bureaucratic decisions on the part of the above mentioned Tamil Nadu high officials, violates the fundamental rights guaranteed by Article 14 and 15 of our Constitution. Article 14 states that, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.” Article 15 elaborates this general commitment to fundamental rights to specifics.

Moreover, as per Tamil Nadu government regulatory rule No: 1762/1987, no Indian Penal Law shall bind the release of convicted persons as given under the said Indian Penal Laws including prisoners undergoing life imprisonment. (Ref: order of forms Director General Prisons; Mr. Sripal vide order no14189/rt/ 1/89 date 4-11-1989).

As per the above regulatory guideline, vide G.O. No 1762/ 87, prisoners who were convicted under the prohibited sections for 12 years, and under trial prisoners who were not convicted for any of the offences but have spent 12 years of imprisonment ought to be released without any discrimination.

Yet, in spite of all these injunctions, prisoners belonging to the Muslim community were prevented from pre release not withstanding their eligibility to be released as a direct consequence of strong prejudice against the Muslim community inculcated in recent decades in Tamil Nadu.

The Sachar Committee report in 2006 brought to light that Muslim prisoners were disproportionately high in Indian prisons, in particular in the state of Maharashtra. No statistics related to Tami Nadu was given then, but it has clearly emerged that Tamil Nadu is no haven for Muslims and tows the line of the national trend – disproportionate percentage of Muslims confined to prison (200% to 300%). Discriminatory attitude against Muslim prisoners, in particular, Muslim prisoners sentenced to life is the order of the day.  

Further, as Sachar Committee report noted, in general, most prisoners are poor, illiterate, laborers coming from the socially backward communities and the Muslim community. (The statistics for the whole of the country are as follows: Out of 1,28,592 convicted inmates, majority of inmates are either illiterate (37,912) or education below class X (57,098) National Crime Records Bureau). Most of them could not even afford the fee of an advocate to take up their cases and that is one of the principal reasons for them ending up in prison.

In many instances, prisoners belonging to the Muslim community are not granted bail citing flimsy reasons and a significant number of Muslim prisoners are held in prisons for more than 10 years as under trial prisoners. Worse of all, when Muslim prisoners are granted parole on rare occasions, their parole is limited to a couple of days and they are taken to their family handcuffed, accompanied by an unusual contingent of police personnel, to the effect of creating an atmosphere of fear and hatred among the neighbors. 

Considering the above facts and figures on Muslim prisoners in Tamil Nadu, and following the movement of recent developments in penology towards the prohibition of imprisonment for life, we put forward the following demands for your perusal in the hope that our voice would be heard with pure passion for human dignity.

Our Specific Immediate Demands: 

1. All political prisoners, Islamic prisoners who have served prison life for more than 10 years shall be released immediately.

2. Life sentence prisoners in Tamil Nadu shall be awarded amnesty upon serving the sentence for a period of 7 – 10 years, in line with such practice followed in other states.

3. Discrimination on the grounds of religion, as shown to the Muslim prisoners is against Article 14 and 15 of the Constitution of India and it should be promptly put to an end.

4. We also request state government for the release of Muslim prisoners under parole without the annoying accompaniment of security personnel.

5. We also request the state government to cancel all the discriminatory orders passed by the previous government which prevented the premature release of eligibleIslamic prisoners.

6. Abuthahirand other prisoners under serious unknown illness should be released considering their ailing condition and the government must take responsibility for treatment.

7. The Central and State Governments should seriously consider the implementation of Mulla Commission report’s recommendations on prison reform. In particular, we forward the following recommendations of the Mulla Commission:

a) In the preamble of the Indian Penal Code specific mention should be made about protection of society through the reformation and rehabilitation of offenders as objective of punishment.

b) The Indian Penal Code should be suitably in the light of the contemporary ideology of reformation and rehabilitation of offenders, e.g., it may provide alternatives to prison sentences and eliminate distinction between simple and rigorous imprisonment.

c) Imprisonment for life should be imprisonment for a fixed term extending over a reasonable period of time which may be determined by the legislature and incorporated in the Indian Penal Code.

d) Section 302 of the Indian Penal Code should be deleted and its provision brought suitably under the proposed section 302 of the Indian Penal Code. (Section 302: Whoever commits murder shall be punished with death, or¹[imprisonment for life] and shall also be liable to fine.)

e) Section 433 A of the Code of Criminal Procedure should be suitably amended so that such lifers as offer good prognosis for reformation and rehabilitation can generally be released after 8 to 10 years of actual imprisonment.

Warm Regards

Islamic Youth Movement against Genocide

Tamil Nadu.

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