The Right to Premature Release: A Constitutional Necessity Under Article 21 for Justice and Rehabilitation in India

Introduction

In 2004, India’s Andhra Pradesh state government ordered the premature release of 1,050 prisoners to commemorate Indian Independence Day, which falls on August 15. The government proposed to follow it with the premature release of another 285 prisoners on October 2, the birthday of India’s ‘Father of the Nation,’ Mahatma Gandhi. One of the selected prisoners sparked controversy because he was convicted of murdering a police officer. Several right-wing organizations, like the current ruling Bharatiya Janata Party and the Vishwa Hindu Parishad, opposed his release, alleging he was an agent for the Inter-Services Intelligence, Pakistan’s spy agency. They maintained that he remained unrepentant of his actions and consequently posed a security risk [1].

Andhra Pradesh’s case is not an isolated incident. The practice of releasing prisoners prematurely in India has long been symbolic rather than a quest to provide the prisoners with their rightful claim to rehabilitation. This politicisation of premature release policies reflects a broader pattern where governments use these releases as tools of political appeasement or ideological assertion for their own benefit, often leading to inconsistent and arbitrary applications of justice.

India’s legal aid authority, the National Legal Services Authority (NALSA) Standard Operating Procedures (SOP) on premature release [2], along with the National Human Rights Commission (NHRC) guidelines [3], advocate for a structured and humane approach to premature release. Despite these efforts, the practice remains inconsistent across states in India.

Recently, in November 2024, the Supreme Court of India in Anand Kumar Singh v. State of Jammu and Kashmir (“Jammu & Kashmir case”), noted that prisoners eligible for premature release were languishing in jails for years beyond their mandated incarceration period [4]. There was no clear policy for premature release based on the period of incarceration in the territory. This was again followed by an issue of similar directions by the Supreme Court in In Re: Policy Strategy For Grant Of Bail (2025), but this time, for all the states without a state policy [5].

This highlights how individual freedom can be compromised because of systemic state failure, exacerbated by the lack of available avenues through which prisoners can obtain redressal for such glaring inconsistencies and violations. Consequently, the ‘right to premature release’ should be recognised as an intrinsic part of Article 21 of the Indian Constitution. Such recognition is essential to safeguard individual liberty, ensuring that even unpopular groups or individuals are not subjected to arbitrary detention. By establishing premature release as a fundamental right, prisoners, who already have limited legal recourse, would gain a definitive avenue to seek redress through constitutional courts, preventing unjustified prolongation of their incarceration.

What is the Existing Legal Framework for Premature Release?

In 2023, Bharatiya Nagarik Surkasha Sanhita (BNSS) replaced the erstwhile colonial Code of Criminal Procedure (1973) as the statutory law governing premature release of prisoners.

Section 473 of the BNSS grants the appropriate government the authority to suspend or remit sentences at any time, either conditionally or on conditions accepted by the prisoner [6]. Here, the “appropriate Government” refers to the Central Government for offences under laws within its executive power and the State Government for all other cases [7]. It also allows the government to seek judicial opinions on remission applications and revoke remission if the specified conditions are not fulfilled [8]. Similarly, Section 475 places restrictions on the power of remission, mandating minimum imprisonment of 14 years for life convicts in cases where death was a possible punishment, thereby preventing premature release before this period is served [9].

These two sections were drawn from the Code of Criminal Procedure (CrPC). However, Section 474 of the BNSS has been changed to the equivalent Section 433 of the CrPC. Under Section 474, the appropriate government has the power to commute sentences ranging from at least seven years to life without the prisoner’s consent [10]. In contrast, CrPC’s Section 433(b) allowed life imprisonment to be reduced to a fixed term of less than fourteen years or even a fine [11]. It further delineates the mandatory criteria of commutation in a sentence of seven years or more, which can be commuted to a sentence of at least three years, and a sentence of less than seven years can be commuted to a fine [12, 13].

National Human Rights Commission and the Mulla Report

In addition to these statutory provisions, National Human Rights Commission’s (NHRC) guidelines on the premature release of life convicts, brought in the wake of blatant irregularities across states in remission policies, are also essential. The NHRC, in the guidelines, noted concerns regarding the inconsistent and arbitrary application of premature release policies across Indian states. Many prisoners were noted to have remained incarcerated beyond 20 years due to the irregular functioning of Sentence Review Boards (SRBs) and lack of uniform policy among states, an issue that is prevalent even today and is highlighted by the Jammu & Kashmir state case [14, 15]. The NHRC noted that many Sentence Review Boards either do not exist or fail to meet regularly, resulting in prisoners being denied timely consideration for release. In response, the Commission formed a special committee to propose uniform guidelines ensuring regular SRB meetings, proper composition of the boards, and clear eligibility criteria [16]. Drawing from the All India Committee on Jail Reforms (1980-83) led by Justice A.N. Mulla (“Mulla Report”), the NHRC has stressed the urgent need for a standardised premature release system across all states to prevent human rights violations and ensure fair and timely consideration of cases [17, 18].

The Mulla Report highlighted that premature release serves as an accepted incentive for prisoners, as it spares them from unnecessary additional incarceration, which may hinder their reformation and rehabilitation. It indicated that it reinstates an offender into society prior to the completion of his sentence “in recognition of his good conduct and responsiveness to correctional treatment.” It adds that the approach removes the rigid nature of fixed sentences, making imprisonment more flexible and purposeful in achieving rehabilitation rather than mere punishment [19].

The guidelines issued initially in 1999 were later amended in 2003 to change the criteria for eligibility for premature release [20]. The amended criteria, based on the new CrPC provisions, state that every convicted prisoner sentenced to life imprisonment can be considered for premature release after serving 14 years of actual imprisonment, excluding any remissions. However, completion of this period does not guarantee release, as the Sentence Review Board holds discretion based on factors like the prisoner’s conduct, their potential for reintegration into society, and socio-economic conditions. State and Union Territory governments are advised to set a uniform period of imprisonment, including remissions, with a minimum of 14 years and generally not exceeding 20 years. Moreover, convicts with life or commuted death sentences, particularly those involved in heinous crimes like rape-murder, multiple murders, or terrorist or contract killings, can only be considered for release after 20 years [21].

The premature-release process begins when the Jail Superintendent initiates the case at least three months before eligibility, preparing a detailed report on the prisoner’s background, offence, conduct, behaviour, health, and a reasoned recommendation. The case is then sent to the district’s Superintendent of Police and the Chief Probation Officer, each of whom must conduct inquiries, justify their views, and submit reports within 30 days. After receiving these, the Jail Superintendent forwards the case to the Inspector General of Prisons, who evaluates all materials and places the matter before the Sentence Review Board. With at least ten days’ notice, the Board meets, chaired by the Chairman or, in their absence, the Judicial Secretary-cum-Legal Remembrancer, to consider each case, aiming for unanimity but deciding by majority if needed. The Board must weigh state and judicial guidelines, offence circumstances, rehabilitation prospects, and societal interests, and cannot reject a case solely on unsupported police objections. If rejected, a prisoner’s case can be reconsidered after one year. The Board’s recommendations go to the competent authority, which may approve, reject with reasons, or seek reconsideration, and if remission is granted, the prisoner is released immediately, with or without conditions [22].

A major weakness of this process is that it is highly bureaucratic, with multiple stages that can slow decisions even when deadlines exist. It also places considerable discretion in the hands of officials like the Police Superintendent and the Sentence Review Board, which can lead to uneven or overly cautious outcomes. Moreover, the absence of consistent, objective criteria across authorities can result in subjective rather than evidence-based judgments about a prisoner’s reform and risk.

National Legal Services Authority’s Standard Operating Procedure

The Supreme Court of India, in Kadir v. State of Uttar Pradesh (2021), directed NALSA to consider issuing SOPs on premature release, and in Mukesh Kumar v. State (Govt. of NCT Delhi) (2012), directed NALSA to prepare a module on remission, premature release, and parole [23, 24]. In response, NALSA created an SOP outlining legal assistance for prisoners, coordination among authorities, and operational steps for premature release, parole, and furlough. The SOP divides the process into four stages: Stage I requires compiling data on life convicts and other eligible prisoners and sharing it with the DLSA; Stage II involves collecting required documents and sending premature release files to the State Prison Department; Stage III mandates that the recommending authority, which is any state-designated board or committee, meet every four months (or as per state policy) to evaluate cases based on factors such as the nature of the offence, risk of reoffending, the prisoner’s capacity to commit future crimes, the purpose of continued imprisonment, and the socio-economic condition of the family, and then forward reasoned recommendations to the government within 10 days; and Stage IV requires the appropriate government to decide each case within one month of receiving the recommendations and immediately communicate its order to the State Prison Department and the SLSA [25].

A notable drawback of this SOP is that the process remains multi-tiered, which can create delays even though timelines are specified. The expectation of holding meetings every few months may also lead to bottlenecks if states fail to follow the schedule consistently. The evaluation criteria, although helpful, are quite general and can lead to subjective or uneven application by different authorities. In addition, there are few effective checks to ensure that the government issues its final decisions promptly, so delays can persist even after recommendations are made.

What does the Case Law say?

Article 21 of the Indian Constitution guarantees the right to life and personal liberty, which also extends to prisoners. A prisoner, despite being incarcerated, retains all fundamental rights, including the rights protected by Article 21 [26]. The Supreme Court also reiterated its position in Maneka Gandhi v. Union of India (1978), in which it held that any deprivation of liberty must follow a just, fair, and reasonable procedure [27, 28]. Consequently, in cases where prisoners remain incarcerated beyond a reasonable period despite eligibility for premature release, their continued detention violates the principles of human liberty, dignity and proportionality, making state inaction a direct contravention of Article 21.

In fact, in the recent In Re: Policy Strategy For Grant Of Bail (2025) judgment, the Supreme Court highlighted that the power under Section 432 of the CrPC must be exercised fairly and reasonably to prevent arbitrariness [29]. It added that without a clear policy or regulations, there is a risk of inconsistent application. It also held that all states lacking a comprehensive policy on premature release must formulate one within two months, either as a separate policy or by incorporating it into prison manuals [30].

Furthermore, the Court emphasised the necessity of fairness in the procedure, and the lack of it is a violation of Article 14 and Article 21, falling short of holding the right to premature release itself to be a fundamental right [31]. It added that the power to grant premature release directly impacts a convict's liberty under Article 21 and must be exercised fairly and reasonably. Therefore, the requirement to record reasons for granting or rejecting remission must be read into Section 432 of the CrPC and Section 473 of the BNSS [32]. Furthermore, the principles of natural justice must also apply, ensuring transparency in decision-making. In Bilkis Yakub Rasool v. Union of India (2024), the Supreme Court held that remission orders must clearly state the reasons for approval or rejection [33]. Recording brief but sufficient reasons allows the convict to understand the decision and to challenge it if necessary.

Judicial pronouncements have consistently reaffirmed that life imprisonment does not equate to incarceration for the entirety of a prisoner’s natural life but rather remains subject to remission and premature release based on legal provisions and principles of justice. In Union of India v. V. Sriharan (2014), the Court underscores the fundamental importance of life and personal liberty under Article 21 of the Constitution. It acknowledges that any deprivation of these rights by the State must adhere to due process and must be subjected to judicial scrutiny to prevent arbitrariness and miscarriage of justice. The Court also recognises that while deterrent punishments serve societal interests, they must be balanced with considerations of individual liberty and human dignity [34].

A significant aspect of the judgment is its emphasis on the fallibility of human judgment, even in the judicial process. It notes that the power of pardon and remission exists to rectify potential judicial errors and to ensure that punishment is not unduly harsh or disproportionate. The Court reiterates that while the power of remission is primarily an executive function, its exercise must be consistent with constitutional principles, particularly Article 21 [35].

Conclusion

The text of Article 21 itself grants every person the right to liberty, only subject to a fair procedure. Curtailment of such liberty due to infrastructural failures is a tragedy that must be rectified.

Both the NHRC Guidelines and the NALSA SOP highlight their dependence on the state apparatus and the existence of a clear state policy on premature release. The NHRC Guidelines stress the need for uniformity in premature release procedures across states to prevent arbitrariness, while the NALSA SOP outlines a structured mechanism based on state policy. Unfortunately, these very basic requirements have not been fulfilled by several state governments, as highlighted in the Jammu & Kashmir case. Without a comprehensive state policy, the implementation of premature release remains inconsistent, leading to delays and unjustified incarceration.

The Supreme Court has again issued directions to the states to frame premature release policies in In Re: Policy Strategy For Grant Of Bail [36]; however, as noted by the Supreme Court in its judgment, such directions have been issued repeatedly by the apex court previously, including the existence of a mandate under the NALSA SOP and NHRC Guidelines and still, the prisoners are languishing in jail without any measures to have at least the rightful consideration of their premature release, owing to something as fundamentally wrong as lack of state policy among other reasons.

The Supreme Court’s emphasis on procedural fairness reinforces the need to recognise the right to premature release under Article 21. Since decisions on remission impact personal liberty, they must adhere to natural justice, requiring clear reasoning for approval or denial. In Bilkis Yakub Rasool v. Union of India [37], the Court held that remission orders must be transparent and justified, allowing convicts to seek legal recourse if denied. Making premature release a fundamental right would prevent arbitrary incarceration, ensure judicial oversight, and emphasise reformation over indefinite confinement.
Recognising premature release as a fundamental right under Article 21 is imperative as it would ensure that prisoners are not left at the mercy of administrative discretion, preventing arbitrary and prolonged incarceration. By making premature release legally enforceable, prisoners would gain a constitutional remedy to challenge undue delays and denials, allowing them to seek judicial intervention in cases of unjustified incarceration.

Footnotes

[1] K. Murali, “Premature Release of Prisoners,” Economic & Political Weekly 39, no. 39 (2004): 4315.

[2] National Legal Services Authority, Standard Operating Procedures on the Process of Premature Release, Parole, and Furlough of Prisoners (2022).

[3] National Human Rights Commission, Premature Release of Prisoners Undergoing Sentence of Life Imprisonment – Eligibility Criteria, Constitution of Sentence Review Boards, and Procedure to be Followed, Case No. 233/10/97-98, Annexure-‘A’ (October 20, 1999).

[4] Anand Kumar Singh v. State of Jammu & Kashmir, WPCrl No. 335/2024 (Supreme Court of India).

[5] In Re: Policy Strategy for Grant of Bail, 2025 INSC 239 (India).

[6] The Bharatiya Nagarik Suraksha Sanhita, 2023, s. 473(1) (India).

[7] Ibid., s. 473(7).

[8] Ibid., s. 473(2).

[9] Ibid., s. 475.

[10] Ibid., s. 474(b).

[11] The Code of Criminal Procedure, 1973, s. 433(b) (India).

[12] The Bharatiya Nagarik Suraksha Sanhita, s. 474(c).

[13] Ibid., s. 474(d).

[14] National Human Rights Commission, Premature Release of Prisoners, Annexure-‘A’.

[15] Anand Kumar Singh v. State of Jammu & Kashmir.

[16] National Human Rights Commission, Premature Release of Prisoners, Annexure-‘A’.

[17] Ministry of Home Affairs, Report of the All India Committee on Jail Reforms, 1980–83.

[18] National Human Rights Commission, Premature Release of Prisoners, Annexure-‘A’.

[19] Ministry of Home Affairs, Report of the All India Committee on Jail Reforms, 1980–83, vol. 1, ch. 20, para. 20.14.

[20] National Human Rights Commission, Procedure/Guidelines on Premature Release of Prisoners, Case No. 233/10/97-98(FC) (September 26, 2003).

[21] Ibid., para. 3.1.

[22] National Human Rights Commission, Premature Release of Prisoners, Annexure-‘A’, para. 5.1.

[23] Kadir v. State of Uttar Pradesh, SLP (Crl) No. 4358/2021 (Supreme Court of India).

[24] Mukesh Kumar v. State (Govt of NCT of Delhi), Crl App No. 1343/2012 (Supreme Court of India).

[25] National Human Rights Commission, Premature Release of Prisoners, Annexure-‘A’, para. III(1.1).

[26] State of Andhra Pradesh v. Cholla Ramkrishna Reddy, AIR 2000 SC 2083 (Supreme Court of India).

[27] Maneka Gandhi v Union of India, AIR 1978 SC 597 (Supreme Court of India).

[28] Ibid.

[29] In Re: Policy Strategy for Grant of Bail, 2025 INSC 239 (Supreme Court of India).

[30] Ibid., para. 10.

[31] Ibid., para. 8.

[32] Ibid., para. 17.

[33] Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481 (Supreme Court of India).

[34] Union of India v. V. Sriharan, W.P. (Crl) No. 185/2014 (Supreme Court of India).

[35] Ibid.

[36] In Re: Policy Strategy for Grant of Bail.

[37] Bilkis Yakub Rasool v. Union of India.