Bengaluru: In 2007, gangster-turned-politician Anand Mohan was sentenced to death for instigating a mob to lynch G Krishnaiah, a Dalit Indian Administrative Services officer. His sentence was commuted to life by the Patna High Court in 2008 and upheld by the Supreme Court in 2012.
Mohan served 15 years in prison and was granted parole three times in the six months before his release. He was released on 27 April 2023, a beneficiary of an amendment to the Bihar Prison Manual 2012, rule 481(1)(a). Ten days prior, on 17 April 2023, the manual was amended to remove the bar on the premature release of those convicted for the offence, “murder of a public servant on duty”.
Mayawati, leader of the Bahujan Samaj Party, claimed his release, made possible by the change in the prison manual, was “anti-Dalit”. Many in Bihar saw the amendment and release as political manoeuvres by the Nitish Kumar government to mobilise the vote bank of Mohan’s upper-caste Rajput community.
Similarly, the premature release of convicts in the Bilkis Bano gangrape case by the Gujarat government was alleged to be politically motivated and possibly legally flawed. In both the Bilkis Bano and Anand Mohan cases, the Supreme Court is currently hearing appeals challenging the releases. The state governments of Gujarat and Bihar argued that the releases were based on legally sound policies, which do not discriminate against other similarly placed convicts.
In the pitched din of political wrangling, issues at the heart of law and policies on premature release affecting ordinary convicts, are neglected. While premature, or early, release should be an accessible pathway for convicts to avail release before they serve their full sentence, our review of the premature release policies of Bihar and Karnataka reveal that are exclusionary and often arbitrarily applied.
They exclude convicts of heinous crimes, from smuggling to murder to terrorism and a wide swathe of others, from even being eligible to apply for early release. Governments fiddle with such policies or laws to benefit individual prisoners as in the recent cases of Gujarat and Bihar. Lack of legal representation, secret proceedings and politicised decisions prevent eligible convicts from ever being released early for displaying good behaviour or remorse, as penal policy provides.
These realities pronounce their carceral nature, preventing a section of convicts from imagining liberty after conviction. Our review of two states gives rise to the possibilities of similar exclusions in premature release policies across the country, and the urgent need to address this marginalisation of many categories of convicts.
Explaining Premature Release
Premature or early release is a penal policy aimed at reintegrating prisoners into society after their conviction. The availability of such a policy allows a convicted prisoner to apply for release from prison before they have completed serving the full term of their sentence.
Premature release is rooted in the principles of restitution and reformation. Convicts recommended under this policy are usually released on 26 January, Republic Day, and 15 August, Independence Day.
Applying for premature release is a common procedure across India. However, it cannot be demanded as a matter of right; and certain categories of convicts cannot apply.
State prison manuals lay out process and conditions. An advisory board made up of prison and other state officials, vested with the power to review long-term prison sentences, reviews and decides prisoners’ applications. Categories of prisoners eligible for premature release, and the procedure involved in adjudicating applications, are available here and here.
A host of systemic issues plague the process for convicts. Proceedings to decide premature release often happen behind closed doors, with little to no input from the convicts themselves (here). There is ambiguity in the procedure (here and here). Convicts also face lack of access to quality legal representation for the appeals process and are stymied by little knowledge of the legal system.
Exclusions In Bihar & Karnataka
In Bihar, a convict had to serve a minimum of 20 years before being considered for early release, before the amendment of the Bihar Prison Manual 2012, rule 481(1)(a). The law department’s notification has removed the offence of “murder of a public servant on duty” from the list of offences that make convicts ineligible for early release.
With this change, those convicted of this offence can at least seek release before serving two decades in prison. The amendment does not include any other categories of offences and those so convicted. The other categories of convicts currently ineligible are those, “who have been imprisoned for life for murder in heinous cases such as murder with rape, murder with dacoity, murder involving an offense under the Protection of Civil Rights Act, 1955, murder for dowry, murder of a child below 14 years of age, multiple murder, murder committed after conviction while inside the prison, murder during parole, murder in a terrorist incident, and murder in smuggling operation".
No rationale is offered in the notification for excluding other categories of convicts and no legally plausible explanations why only the murder of a public servant on duty is deleted from rule 481(1)(a).
As in Bihar, a Karnataka government order of 21 July 2016 and premature release guidelines issued in 2020 exclude a long list of convicts from premature release.
The list includes (non-exhaustive): convicts in smuggling, robbery, contract killings, rape, dacoity, premediated and violent murder cases, and persons sentenced for unnatural offenses. Also, convicts sentenced for the murder of a public servant on duty, prison officials, prison visitor or fellow prisoner, convicts in cases against the State and the navy, army and air force. Prisoners sentenced by other countries or states, but lodged in Karnataka; and prisoners who are foreign nationals, too, are excluded.
Also excluded are convicts in cases investigated by the Central Bureau of Investigation and the National Investigation Agency, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Protection of Children from Sexual Offences Act, 2012, the Narcotic Drugs and Psychotropic Substances Act, 1985, the Unlawful Activities Prevention Act, 1967, Explosive Subtances Act 1908, the Official Secrets Act, 1923.
And, finally, convicts in terror cases, the National Security Act, 1980, the Terrorist and Disruptive Activities (Prevention) Act, 1985, the Prevention of Terrorism Act, 2002, and the Anti-Hijacking Act, 2016.
Karnataka’s premature release policy is currently being challenged in the state high court for not having any rational basis for excluding this long, and growing, list of convicts from its ambit, other than the fact that they are considered “heinous”.
The petitioner also highlighted loopholes in the procedure the advisory board follows to adjudicate premature release applications.
In 2022, the Karnataka government moved to exclude convicts accused of multiple murders in the same case, after a life convict named Praveen Kumar, convicted for killing four of his family, was recommended for early release based on good behaviour. The victim's family had strongly objected to his release. Praveen has been incarcerated for over 20 years.
Far from being reformative, implementing such deeply punitive post-conviction policies disincentivises prisoners from ever trying to imagine a life outside the criminal justice system.
Crime, Punishment & Carcerality
The trends around these policies mirror the tenor of the “prison reform paradigm” in India. Prisoners' rights and prison realities are highlighted only when politicians and political activists (political prisoners) are incarcerated.
The reform paradigm can be characterised as carceral, meaning it relies on State-sanctioned criminal justice mechanisms that are not fundamentally rehabilitative and/or restorative for the incarcerated person. This hard approach lacks the imagination of alternatives to incarceration. It is also overly punitive, retributive and punishment-oriented.
So far, the reformist approach has been confined to temporary fixes at best. The fact that premature release policies are designed to exclude a long list of life convicts, sentenced for so-called “heinous crimes” reveal the tendency towards carcerality, largely uncontested by civil society.
The release of convicts like Anand Mohan offer opportunities to revive the discourse on crime, punishment, and post-conviction rehabilitation. It is important to analyse the opposition to Mohan’s release. Firstly, is it rooted in carcerality—i.e., should murder convicts (considered a heinous crime) like him be locked up in prison forever? Is it because his release appears to be politically motivated? Is it both? Is there a normative opposition to the release of convicts sentenced for the murder of a public servant on duty?
Lastly, how should criminal justice practitioners view the recent amendment to the Bihar Prison Manual, given that 26 similarly placed convicts were released along with Anand Mohan?
While there are no easy answers to these questions, an anti-carceral advocate is guided by the principle that people should not be locked up inordinately (here and here). As much as it is crucial to question politically motivated releases, it is equally important to understand how prison policies are framed and implemented and how they can be shaped to expand the rights of all prisoners.
For instance, we should question the rationale behind leaving out numerous categories of convicts from premature release policies, and advocate for them to be open to all convicts. This can coincide with strategic advocacy for increased investment on survivor rehabilitation, healing, and witness protection policies.
Adopting restorative justice techniques that involve both the survivor or survivor’s family, and the convict, in post-conviction rehabilitation processes could ensure the safety of survivors, as well as offering the opportunity to convicts to rebuild their lives.
The fundamental principle of anti-carceral politics is universal and not relative. It is not retributive. Its interest lies in building spaces of healing for all convicts regardless of the crimes they have committed.
As per the Prison Statistics of India (here and here), the convict population has a disproportionate share of Dalit-Bahujans, Muslims, and Adivasis, including those sentenced to life for “heinous crimes”. Ultimately, a change in premature release policies that allows for more convict releases has the potential to benefit all convicts.
Are Convicts Lost in the Prison Reform Paradigm?
The issue of undertrials garners substantially more attention than the convict population in the discourse on prison reforms.
One reason is the sheer number of undertrials (about 70%) in prisons compared to convicts. Undertrials refers to prisoners incarcerated without having been convicted of any crime.
The consistently high number of undertrials in Indian prisons signals that the criminal justice system is imprisoning many more people than it puts to trial and convicts. This is exacerbated by the weak enforcement of checks on the police’s power to arrest (here and here).
While the length of time undertrials spend in detention is the subject of external research, the experiences of convicts availing premature release or other policies is less monitored.
An analysis of the Prison Statistics of India (PSI) data between 2001 and 2010 revealed that close to 40% of undertrial prisoners spend three months in prison and about 80% spend less than a year.
However, the data between 2010 and 2019 showed that the percentage of undertrials spending less than a year went down to 74%, while those spending three to five years increased by 1.4%. These changes in periods of incarceration reveal the undertrial population in India is not stagnant, in contrast to the convict population.
The prison-reform discourse must take the “convict problem” seriously. Policies concerning convicts are often replete with arbitrary standards and adjudication, such as the ones discussed here.
A report by the Karnataka State Legal Services Authority and the Commonwealth Human Rights Initiative showed that 89% of convicts in Karnataka prisons did not know/understand the legal processes of their case. In contravention of the Karnataka Prison Rules, 1974, convicts’ applications are not considered for premature release until their appeals are pending, which discourages convicts from taking the appeal route.
A vast majority of convicts do not have access to legal representation to challenge their conviction (here and here). Women convicts face heightened vulnerability, as they are often abandoned by their families once they are in prison. These issues are just the tip of the iceberg.
The convict problem is often ignored because the system’s assumption is that their convictions are just and fair and they need to be locked up in prison to protect society. The fact that in one state, 89% of convicts did not have any real knowledge about their cases raises questions about convicts across the country denied access to quality legal representation and prevented from being able to contest possible claims of wrongful conviction.
Unless the praxis of prison reform is rooted in anti-carceral and anti-punitive principles of justice, challenging the conventional notions of crime, punishment, and post-conviction rehabilitation of convicts remain a distant dream.
(Bindu Doddahatti is an assistant professor at the Azim Premji University. She’s also a member of Prisons Forum Karnataka, a nonprofit that she cofounded.)
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