Plight of Muslim prisoners
Muslim convicts are disproportionately affected by protracted imprisonment in Tamil Nadu, where the policy of remission itself is mired in controversy. The minority community is hopeful that the DMK government’s move to address this issue will provide
much-needed relief.
“The prison experience is neither normal nor natural, and constitutes one of the more degrading experiences a person might endure.”
—Sociologist Donald Clemmer in ‘The Prison Community’
. WHEN MOHAMMED ALI WAS CONVICTED and sentenced to life imprisonment for his role in a criminal conspiracy behind the serial bomb blasts in Coimbatore in 1998, which killed 58 persons and injured over 300, he was 23 years old and his young wife, Mubeena, was six months pregnant.
Ali has now spent a quarter century of his life, well beyond the usual length of a life term, within the narrow confines of prison. He is 49 years old; his daughter is 25 and the mother of a child. Decades of isolation have completely detached him from family and society, leaving him a wreck.
He is is not alone in suffering such painful and protracted confinement. While Ali and 16 other Muslim prisoners convicted in the Coimbatore blasts case have remained incarcerated for decades, a substantial number of Muslim prisoners who were not connected with serious disruptive activities but were convicted for general crimes under Indian Penal Code (IPC) sections such as 302 are also suffering the agonisingly ‘extended’ terms.
Neither the State’s executive clemency measures, such as remission, nor bail benefits them, although remission is not a matter of right. Besides, remission does not mean freedom to lead a normal life. It is restricted and monitored living outside prison for the rest of the remitted sentence. The entire process is governed by stringent guidelines. Those who come out on remission are constantly monitored by law enforcers and even a minor violation of the law will lead to its cancellation.
Hence, these prisoners occasionally connect with their families through short and restricted paroles. But non-muslim prisoners rarely face such problems. However, there are exceptions—the persons convicted and incarcerated for the assassination of former Prime Minister Rajiv Gandhi, and remission for these convicts has been mired in political controversy. The convicts even had to wage tenacious legal battles just to secure parole, leave alone remission.
For people like Mubeena, the daughter of 84-year-old S.A. Basha ‘Bhai’, the mastermind behind the serial bomb blasts, paroles have been “little joys” in a life otherwise marked by agony and sorrow. Mubeena told Frontline: “Paroles reconnect them with us. The law found him [her husband] to be an offender for which he was punished. But he continues to be in jail beyond the stipulated term. We knew he was innocent. God knows that. But we are powerless. Many like him were implicated in that serious offence at that time of violence—around 160 of them.”
The Madras High Court, in response to petitions filed by a batch of 39 convicts against the trial court’s sentence in the bomb blasts case, acquitted 21 persons in 2007, and the then Tamil Nadu government, led by the Dravida Munnetra Kazhagam (DMK), gave remission to nine others in 2008. A few others died, while 17, including Mohammed Ali, one of the key accused in the case, remain in prison. Appeals against the prolonged incarceration of these convicts, including Mubeena’s husband, have been pending before the apex court for a decade now. (The serial bombings took place reportedly in retaliation for the killing of 18 Muslims allegedly by Hindu fundamentalists following the murder of a police constable named Selvaraj by a few Muslim youths in Coimbatore in 1997. In the riots that followed, the property of Muslims worth crores of rupees was looted and destroyed.)
Today, several of these prisoners are said to be suffer
ing from various health issues, besides experiencing bouts of anxiety and seizure. Some could come out on parole for treatment, while a few have died of illness and old age. Whether those who have greyed in prison will ever walk out remains uncertain.
SYSTEMIC BIAS
According to the National Crime Records Bureau (NCRB), in 2015 Muslims constituted 15.8 per cent of all convicts and 20.9 per cent of undertrials in Indian jails; the percentage of both in Tamil Nadu (around 17 per cent) was almost thrice their population in the State (5.86 per cent). The NCRB data for 2020 showed that 17.7 per cent of all convicts and 24.9 per cent of undertrials were Muslim.
As in the case of those convicted in the Rajiv Gandhi murder case, which still remains controversial decades after the verdict, the issue of Muslim prisoners too gets entangled in a web of political and religious prejudices.
The seemingly indefinite incarceration of Muslim convicts, especially those involved in the bomb blasts case, has wrecked them and their families. Mubeena, who believes in the functioning system of “restorative justice” and “reintegration”, said: “I cannot explain the anxiety and trauma we undergo every day. Keeping them in prison for years is inhuman.”
Protracted imprisonment makes a prisoner more bitter, especially when the rules are enforced with prejudice. Coimbatore-based Mohammed Bashith, who works for prisoners’ rehabilitation, said: “The irony is that even judicial officers before whom we file petitions for bail and parole would be reluctant to issue them. And mind you, not a single person from the majority community who is involved in violence against Muslims remains in prison today. Even a majoritarian leader, allegedly behind the violence against Muslims, remains free till date.” Several activists say that with the right-wing Bharatiya Janata Party (BJP) in power at the Centre, the chances of a homecoming for these Muslims are thin.
DMK INITIATIVE
However, the Dmk-led government in Tamil Nadu has initiated a proactive exercise to respond favourably to the genuine representations of “all eligible prisoners” under remission. This exercise follows a representation from the Muslim community against Government Order No.488 on remission under Article 161 of Constitution, on the grounds that it carried a clause that is inimical to the release of Muslim prisoners.
(Article 161 says: “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 with respect to which the Legislature of the State has power to make laws.”)
In December 2021, Chief Minister M.K. Stalin set up a six-member committee headed by Justice N. Authinathan (retired) of the Madras High Court “to recommend to the government the premature release of life convicts who had completed 10 and 20 years of their sentences, on humanitarian considerations”.
With no codified remission policy in place, the panel has taken up the job of identifying “eligible prisoners” for remission. Besides, the panel will study the eligibility criteria for prisoners who are elderly, sick and differently abled (not self-inflicted for remission) and those with mental and health issues. These prisoners should have completed 10 years and 20 years of their sentences. The panel said that this would be in accordance with various Supreme Court verdicts and guidelines, besides existing laws and regulations, concerning remission.
Legal experts see it as a socially constructive move that might benefit all suffering prisoners, including those from minority communities. But they are also apprehensive about the hurdles this exercise of compassion could face from other forces, although a State’s final decision under Section 161 cannot be negated. They said that the government’s move has infused confidence in these long-serving prisoners about securing remission.
S. Manoharan, a senior lawyer who has been appearing in cases related to remission for convicts sentenced to life, said: “The act of the Tamil Nadu government should not be construed as mistaken sympathy. Remission and rehabilitation are an integral part of the correctional system. Reconnecting the prisoners to society and to their families at least in the last phase of their lives is the responsibility of a welfare State.” He added: “Rule of law is rule of justice. But in the name of discretionary powers, such rights should not be negated. It is a frustrating experience for any one to see someone being behind bars for 25 years.”
The remission process in Tamil Nadu turned contro
versial when the convicts in the Rajiv Gandhi case sought it. The Supreme Court, acting on a petition from the Centre, cancelled their remission observing that “life sentence is meant for life”.
POLITICS IN REMISSIONS
In September 2016, a Constitution Bench ruled that the State government led by the All India Anna Dravida Munnetra Kazhagam (AIADMK) did not have suo motu powers to release the convicts on remission without the concurrence of the Centre since the persons were sentenced under Central laws.
The Supreme Court commuted the death sentences of three persons to life on February 18, 2014, and the very next day, the then Chief Minister Jayalalithaa made a suo motu statement in the Assembly asking the Central government to give its nod under Section 435 of the Code of Criminal Procedure (CRPC) in three days, failing which, as per the Cabinet decision, she would release them under Section 432 of the CRPC, which the Central government strongly opposed.
(Sections 434 and 435 stipulate that a State government, before remitting a sentence, has to consult the Centre if the convicts have been punished under Central laws. Section 432 says that when any person has been sentenced to punishment for an offence, the “appropriate government” may suspend the sentence or remit the whole or any part of the punishment of a prisoner to which he has been sentenced. The expression “appropriate government” in subsection 7 of 432 refers to the Centre if the sentence has been given for an offence against or any law relating to a matter to which the Centre’s executive power extends. Section 433 talks about the powers of commuting the sentence.)
But nothing happened despite Jayalalithaa’s ultimatum. Hence, the Tamil Nadu government, in September
2018, took a Cabinet decision for the grant of “executive clemency” under Article 161 and sent it to the Governor. But the Office of the Governor sat over it, creating intense legal and political debates.
Prabhu Rajamanickam, the counsel for A.G. Perarivalan, one of the convicts in the case, said: “The Governor knows that any decision that goes against the Cabinet’s decision will not be tenable under law. He has been evading the finality in the issue of remission. It is sheer politics. States must enforce their rights strongly.”
The convicts approached the Supreme Court, which asked the Governor to decide on the matter within a reasonable time frame. Following this, the petition was forwarded to the President, whose decision is awaited.
Meanwhile, Nalini, another convict in the case, challenged the constitutionality of Sections 432 and 433 of the Crpcin the Madras High Court.
Section 433A, which gives States the power to grant remission, states that where a sentence of imprisonment for life is imposed on a person for an offence for which death is one of the punishments, or where a sentence of death has been commuted under Section 433 to imprisonment for life, such person “shall not be released from prison unless he had served at least 14 years of imprisonment”.
The Supreme Court has held in several judgments that the Governor’s power to pardon overrides Section 433A of the CRPC. It ruled that the Governor can pardon prisoners even before they have served a minimum of 14 years their sentence. Section 433A does not affect the constitutional power conferred on the President or Governor to grant pardon under Articles 72 or 161 of the Constitution. In January 2021, the Supreme Court noted that “the Governor cannot reject the State’s recommendation but there is no time prescribed to take a decision”. The court also noted that the sovereign power of a Governor to pardon a prisoner under Article 161 is actually exercised by the State government and not the Governor on his own. It said: “The advice of the appropriate government binds the Head of the State.”
The remission row in the Rajiv Gandhi case has led to an intense debate among legal experts and members of civil society regarding the correctional system of “executive clemency”. It has also been sucked into a vortex of conflicting political, religious, linguistic, regional and casteist affiliations and prejudices. Whenever the Statecentre relationship sours, the “pardoning and mainstreaming” of prisoners suffers. Similarly, the issue of granting remission for Muslim prisoners, including those convicted in the bomb blasts case, has become yet another sensitive issue. Among the 3,000 life convicts in Tamil Nadu, a significant chunk are said to be Muslims. Hence, the collective anxiety among the minorities today is whether a non-bjp-ruled State like Tamil Nadu can use its powers to accord “executive clemency” unmindful of a possible backlash from right-wing forces.
In the absence of a codified remission policy, which the Supreme Court has underscored in several judgments, “privileged convicts”, mainly those with political and casteist affiliations, have walked out of prison unaf
fected by the issues that plague Muslim and underprivileged prisoners. Both the DMK and the AIADMK governments have granted such remissions in the past.
‘PRIVILEGED’ CONVICTS
In 2008, the DMK government gave remissions to about 1,400 prisoners, including a few Muslim prisoners convicted in the bomb blasts case, besides those party supporters who had been sentenced for the murder of M. Leelavathy, a councillor belonging to the Communist Party of India (Marxist), in Madurai in 1997. Although a petition seeking the enhancement of sentences for the accused in the bomb blasts case was pending in the court, the DMK government gave remission to nine Muslim prisoners on the grounds of “good behaviour”.
The AIADMK government, which was in power from 2011 to 2021, released two batches of prisoners under remission in 2019-20. The first batch included three AIADMK cadres who had burnt alive three college-going girls in the Dharmapuri violence after Jayalalithaa was convicted in the Pleasant Stay Hotel case in 2000. All three were sentenced to death but got their sentences commuted to life on repeated appeals in the Supreme Court, before walking out of prison after having served 14 years or so. The then Governor, Banwarilal Purohit, returned the file on remission for the three AIADMK cadres thrice saying he “was not satisfied” even after the file was submitted to him for the third time for his approval on November 12, 2018.
The same government gave remission to 17 caste Hindus who had been convicted for the gruesome murder of seven Dalits in Melavalavu near Madurai in 1999, including the village president Murugesan. Of the 17, one died in prison while three were given remission in 2008, whereas the remaining 13 were released for “good conduct” in 2020. All these prisoners were released under Article 161 of the Constitution. P. Rathnam, a senior lawyer and activist, has taken up the issue of the premature release of those involved in the Melavalavu and Dharmapuri murders before the Madurai Bench of the Madras High Court. Peter Durairaj Periyanayagam, an activist, said: “Such privileges are denied to Muslim prisoners. Even the Advisory Board to release Muslim prisoners who have spent more than 14 years in prison has not been formed. After the prisoner serves his complete term of punishment, he/she should be allowed to enjoy the remedies available in the law and nobody should be discriminated against on the basis of religion, caste, or ethnic identities.” Chief Minister Stalin announced on the floor of the Assembly in September last year that 700 convicts serving a life sentence would be released on September 15, on the 113th birth anniversary of former Chief Minister C.N. Annadurai. On the basis of the announcement, the government issued G.O. No. 488 on November 15, 2021. It listed as ineligible for remission prisoners who committed crimes under IPC Sections 376 (rape), 397 and 398 (robbery), 396, 399, 400, and 402 (dacoity), sections relating to forgery and other related offences, offences against the state, terrorist crimes, and 498A and 304B (cruelty to women and dowry deaths), besides Central laws. The G.O. added that those convicted for “violence on communal and religious basis” are also ineligible, which has left Muslims disturbed.
M.H. Jawahirullah, senior leader of Tamil Nadu Muslim Munnetra Kazhagam, said: “Even in earlier remissions, Muslim prisoners who had served extended sentences were not considered. Even those who were not connected to any disruptive activities and who were serving sentences for ordinary crimes are not considered for remission.” A high-profile team led by Maulana P.A. Kajha Mohinudeen Baqavi met the Chief Minister on November 29, 2021, and conveyed its concern about the G.O’S specific condition before urging him to reconsider the cases of 39 Muslim convicts, including 17 convicted in the serial bomb blasts case, who have spent more than 14 years in prison.
NEED FOR CODIFIED POLICY
Uncertainties, interpretations and inconsistencies that plague the issue of premature release have prompted the apex court to study the need for the viability of finding a common system regarding remission. In multiple judgements it has highlighted the problems faced by prisoners, especially those who have spent 14 years behind bars.
In view of the variations in the remission of policies of States, the Supreme Court asked the National Legal Services Authority (NALSA) in 2021 to consider a uniform remission policy across the country which could facilitate premature release of those who had completed 14 years in prison. A bench of Justices Dhananjaya, Y. Chandrachud and M.R. Shah observed: “NALSA is requested to consider issuing a uniform country-wide standard operating practice (SOP) for protecting the rights of similarly placed convicts to secure premature release in accordance with the provisions of law.” Many Supreme Court judgments interpreted the powers of Governors vis-a-vis States in the issue of remission. In several cases, such as Maru Ram vs Union of India (1980) and Dhananjoy Chatterjee vs State of West Bengal (1994), the Supreme Court even ruled that the President should act on the advice of the Council of Ministers while deciding on mercy pleas.
In March this year, a two-member bench of Justices Ajay Rastogi and A.S. Oka pointed out the contradictory stands of the Uttar Pradesh government in the absence of uniform guidelines on remission. It cautioned that “invoking political discretion” to benefit only a few would invite problems for the State. The bench said: “There is no uniformity. Follow one standard… And the standard must be followed in all cases irrespective of other considerations. If you infuse political discretion and wisdom in individual cases, you will be in trouble.” In another case in November last year, a bench headed by Justice Sanjay Kishan Kaul expressed the view that the idea of punishment should have reformation as the objective. He said: “We do not want to punish persons. They must be reformed and sent back to society. Any policy must consider this aspect of reformation in it.” m