As Mohammad Afzal Guru, charged in the December 13, 2001, attack on the Indian Parliament, awaits a final decision on his clemency petition pending before the President and Indian civil society deliberates on the abolition of death penalty, no attention is paid to the human rights implications of the alternative to the death penalty: life imprisonment.

In countries where death penalty has been abolished, life imprisonment is the maximum punishment for committing the most horrific of crimes. In most jurisdictions, however, life imprisonment does not necessarily imply a whole life in prison and lifers may be released after serving a substantial portion of their sentence, based on several mitigating factors. However, in a country like India, where death penalty is still in use, it's assumed that being a lesser punishment, life imprisonment is less retributive and more reformative in nature.

International norms

When it comes to life imprisonment, there are no set, fully developed international standards. But, international human rights law allows the imposition of life sentences only in the most serious crimes and prohibits the use of Life Imprisonment without Parole (LWOP).

The International Covenant on Civil and Political Rights (ICCPR), which came into force in 1976 and was signed and ratified by 161 countries, including India, says that the "penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation". As the non-government organisation Penal Reform International noted in 2007, the purpose of reformative punishment will not be served if a convict lives his or her whole life in detention without being released on parole.

General Comment 21 of the Human Rights Committee, which is a United Nations (UN) Committee that oversees the implementation of ICCPR obligations in State parties, notes, "Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party. This rule must be applied without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

Article 37 of the United Nations Convention on the Rights of the Child (CRC) prohibits the use of capital punishment and LWOP for offenders below the age of 18 years. The Rome Statute of the International Criminal Court provides that the maximum sentence of life imprisonment imposed on criminals convicted of grave crimes such as war crimes, crimes against humanity and genocide should be reviewed after 25 years. Although India is party to the CRC, she is opposed to the idea of an International Criminal Court and thus, is not party to the Rome Statute.

The United Nations Standard Minimum Rules for the Treatment of Prisoners lays down good practice norms for the treatment of prisoners, which are to be adhered to by prison authorities and institutions.

The Indian situation

India continues to use the death penalty, supposedly in the 'rarest of rare' cases. Amnesty International (AI) reports that nine offences under the Indian Penal Code (IPC) and 14 other local or special laws provide for the death penalty in India. Although official figures indicate that 273 persons had been given the death sentence as of 31 December 2005, AI states that 140 persons were sentenced to death in 2006 and 2007, along with 44 others whose mercy petitions are being considered by the President of India (AI, 2008). India has also voted against a UN General Assembly resolution calling for "a moratorium on executions with a view to abolishing the death penalty", stating that it goes against the country's statutory law.

Given India's unwillingness to abolish the death penalty, it's interesting to study the country's position in relation to life sentences. Life imprisonment, without the possibility of release, leads to indefinite detention in prisons, and is known to cause physical, emotional and psychological distress. Prisoners could suffer from ill-health, social isolation, loss of personal responsibility and identity crisis, and may even be driven to suicide. A 2007 report on Indian prisons by the Bureau of Police Research and Development, Ministry of Home Affairs, reveals that most Indian prisons are overcrowded, with inmates living in unsanitary and unhygienic conditions in small cells, without proper light, ventilation or privacy. The report notes that Indian prisons house a total of 358,368 inmates though their sanctioned strength is 246,497.

Added to this is the ill-treatment of prisoners by prison authorities, often sanctioned by outdated legislation such as the Prisons Act, 1894, and state prison manuals. For example, the 1894 Act allows the imposition of corporal punishment (whipping) or solitary confinement for a limited period by prison authorities for offences such as "feigning illness" or "contumaciously refusing to work". The lack of medical facilities and understaffing in prisons further aggravate the misery of prisoners in India. In such a situation, life imprisonment without release or parole is unhealthy and undesirable.

In Gopal Vinayak Godse Vs Union of India ([1961] 3 SCR 440), the Supreme Court of India held that life imprisonment "must prima facie be treated as ... imprisonment for the whole of the remaining period of the convicted person's natural life". More recently, in Mohd Munna Vs Union of India and Others ([2005] 7 SCC 417), the apex court held that "imprisonment for life is not equivalent to imprisonment for fourteen years or for twenty years". However, the Indian Constitution and criminal laws provide for grant of pardon and commutation of sentences by the President of India, governors and the executive.

Articles 72 and 161 of the Indian Constitution give the President of India and governors of states the power to grant pardon, suspension, remission or commutation of sentences in certain cases. Sections 54 and 55 of the Indian Penal Code (1PC) confer on the appropriate government - Central or state governments - the power to commute sentence of death or life imprisonment. Section 432 of the Code of Criminal Procedure (CrPC) also gives the power to remit or suspend sentences, with or without conditions, to the appropriate government. Section 433 of the CrPC empowers the appropriate government to commute a life sentence for a term up to 14 years or a fine, without the consent of the person so convicted.

However, certain restrictions have been placed on the power of remission under Section 433A of the CrPC. According to this section, a person serving a life sentence for an offence for which death sentence is also a punishment or where a death sentence has been commuted to a life sentence cannot be released before serving at least 14 years of imprisonment.

The power of remission or commutation was justified in a plethora of court decisions, on the ground that "public welfare will be better served by inflicting less than what the judgment fixed". While the sentencing power lies with the judiciary, the power to commute such sentences is largely executive in nature. In Kehar Singh Vs Union of India ([1989] 1 SCC 204), the Supreme Court clarified that the Constitutional power of grant of pardon or the executive power of remission does not conflict with the judicial power of passing a judgment. The effect of the executive power of remission is to "remove the stigma of guilt from the accused or to remit the sentence imposed on him".

The Supreme Court has declined to lay down specific guidelines for commuting sentences, and a case-to-case basis approach is preferred.

 •  Clear the jails first

The executive power to suspend, remit or commute life sentences may be subject to judicial review on limited grounds. In the case of Maru Ram Vs Union of India and Others ([1981] 1 SCR 1196), the court observed that the power of remission is a Constitutional power that should not be curtailed but the exercise of this power should not "be left to the fancy, frolic or frown of the Government ... but must embrace reason, relevance and reformation". In other words, the court stated that the exercise of power under Articles 72 and 161 of the Constitution should be guided by Section 433A of the CrPC and while remission schemes serve as an incentive for reformation of lifers and should be encouraged, the executive authorities should not abuse such powers of remission.

In Swaran Singh Vs State of Uttar Pradesh ([1998] 4 SCC 405), the Supreme Court observed that if the Constitutional power of pardon was exercised "arbitrarily, malafide or in absolute disregard of finer canons of constitutionalism", it could not be approved. In Maru Ram, the court was in favour of framing guidelines for the exercise of the Constitutional power of pardon and remission. However, in subsequent cases, the court refused to lay down specific guidelines as each case vastly differs from the other. Hence, a case-to-case basis approach was recommended.

In the Kehar Singh case, the court observed that the President need not provide any reasons to the affected party as to why he or she was accepting or rejecting a pardon plea. However, this does not automatically imply that the President or the executive authority should pass a pardon or remission order without a legitimate basis.

Even if an unreasonable order is passed, it can be challenged before a court of law within the limited scope of judicial review in remission/pardon cases. Besides, a pardon or remission order passed on patently illegitimate and arbitrary grounds may be revoked under the law (Section 432(3) of the CrPC). In the case of Epuru Sudhakar and Others Vs State of Andhra Pradesh and Others ([2006] 8 SCC 161), Justice Kapadia observed that prerogative powers such as the Constitutional power of pardon were no longer ipso facto immune from judicial review. He stated, "Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised on the ground of political expediency."

A look at the jail manuals and rules in different Indian states show that lifers are not entitled to automatic release after serving 20 years of the life sentence. However, they do earn the right to have their case for remission put forth before the state government by the prison authorities.

In the case of Epuru Sudhakar, Soli Sorabjee, appointed as amicus curiae, submitted before the court that the power of pardon and remission was usually exercised on several legitimate grounds, including the interest of society and the convict, the period of imprisonment undergone and the time left to be served, the seriousness of the offence, the age and health of convict, prison records, post-conviction conduct, remorse and atonement.

Despite the proclamation by the Indian Supreme Court that life imprisonment is for life, the power of pardon or sentence remission may be exercised to ensure early release. As Justice Laurie Ackermann of the South African Constitutional Court observed in the case of S Vs Dodo (CCT/1/01), "To attempt to justify any period of penal incarceration, let alone imprisonment for life ... without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of dignity. 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."