Who Decides Which Prisoners Deserve an Early Release?

The rejection of Devender Pal Singh Bhullar's plea for early release show the arbitrary – and often unfair – way these decisions are made.

The recent denial of the premature release of Devender Pal Singh Bhullar by the Delhi State Review Board for the seventh time calls for attention to the issue of convicts imprisoned for extended periods of time in prisons.

Bhullar, who is 58, has been in prison for close to 26 years now. This means that he has spent most of his life as a prisoner. Bhullar was convicted in 2001 by the TADA court under the anti-terrorism law (TADA) for an explosion in Delhi in 1993 that killed nine bystanders. His conviction raised various debates, given that the entire evidence against him was based on his ‘confession’, which his family and lawyers maintained was obtained under torture and duress.

While all other accused were acquitted in the case, his conviction was predicated on his own retracted confession, which was not recorded in written or electronic form, as required by the law under which he was convicted. In March 2002, the Supreme Court affirmed his death sentence by a split verdict of 2:1, with the presiding judge who acquitted him due to a lack of evidence and cast doubts on the authenticity of his confession. It was later in 2014 that a five-judge bench of the Supreme Court commuted his death sentence to life imprisonment, reversing its two-bench judgment which had refused to commute his death sentence.

The Supreme Court reversed the decision on two grounds. Firstly, it recognised the medical findings in his case, which revealed that he suffered from major mental health disorders. Secondly, it cited an unexplained delay of eight and a half years in deciding over his mercy petition. The earlier two-judge bench had stated that mere delay in evaluating mercy appeals of terror convicts could not be used as a justification for commuting their death sentence.

A case for his early release

Section 433 of the Criminal Procedure Code allows prisoners who have served a 14-year sentence in prison to be considered for early release. The primary objective of this is to reform inmates and reintegrate them into society. The most significant factor for their release is whether they have transformed into harmless and beneficial members of society and if their imprisonment will serve any good. Judgments of the Supreme Court have ruled out the concept of “savage justice” in favour of sentence softening processes. That punishment ought not to be used to exact revenge but rather to reform and rehabilitate the prisoners is something that has already been held by the courts.

The provision to release, however, is a discretionary power granted to state-appointed sentence review boards that propose prisoners for their early release. More often than not, this discretionary power has been proven to work not just in a bureaucratic manner but also in tandem with the state authorities. The Bilkis Bano case convicts en masse released by the state of Gujarat have already shown us how this discretionary power of the prison authorities operates and how it has increasingly become a tool at the hands of state agencies that issue selective directives depending on their own preferences and agendas. The Supreme Court in Bano’s case, while setting aside the release of convicts, raised important questions over this arbitrary and selective way in which the board exercises its power.

The rejection of Bhullar’s plea is an example of this. His case was rejected by the board with a sole dissenting vote from a Delhi government minister, who favoured his release based on his mental health conditions. The cyclostyled order equates his release with a “direct threat to the country’s sovereignty, integrity, and tranquility” and a “significant threat” to society. The comment on the board reads: “Though old, the terror convict still poses a threat to society” and that “the possibility of his committing crime again cannot be ruled out.” The comments on the board show bureaucratic mechanical reasoning where the sole basis for the rejection of a schizophrenic disorder-suffering prisoner – a serious mental condition that impairs cognition and produces a loss of reality – was his initial charge of terrorism.

For the Supreme Court, the case of early release – even though the discretionary power of the prison – has to be exercised in an objective and transparent manner so that it does not impinge on the constitutional guarantees under Articles 14 and 21 as stated in Rashidul Jafar vs State of U.P. (2022). In Laxman Naskar vs. Union of India (2000), the Supreme Court laid down directions that mention factors that should be considered while considering a case for premature release of a convict. These factors include the convict’s potential for committing a crime, his overall conduct and performance in jail, the total period of incarceration undergone, their rehabilitation potential, and the socioeconomic status of their family. In addition to this, the circumstances of the offence as well as the convict’s state of mind at the time when the offence was committed are also factors that ought to be kept in mind.

A reading of his rejection order shows that the above-mentioned factors were overlooked. The report does not find mention of his conduct in prison or during parole. Furthermore, there is no explanation or supporting evidence that justifies Bhullar’s propensity to commit a crime in the future, considering his schizophrenia condition. Despite the local police in Bhullar’s hometown raising no objections to his release, any explanation by the Delhi police who opposed his release as to how releasing him would become a serious threat to society is also absent.

Even though the context may not be the sole ground in deciding a case for early release, the context of Bhullar’s case, which is rooted in the experiences of the 1990s in Punjab, cannot be discounted. This was when the state engaged in massive extrajudicial killings and disappearances in Punjab which his father and uncle too became casualties. The eyewitness account and his mother’s complaint against police officials at a Bathinda court in 2013 for her husband’s kidnapping and death reveal how his father was subjected to enforced disappearance.

Bhullar’s rejection is arbitrarily based on a single rationale: the nature of his offence. For this the Supreme Court in Maru Ram vs. Union of India (1981) stated that even the most “serious” offences necessitate a reformative approach if a person has served a sufficient amount of time in jail. In Bhullar’s case, his 26 years of long imprisonment was not considered for the sole reason that he was convicted on terror charges. The arbitrariness of Bhullar’s case sheds light on the jail authorities’ discretionary power which has completely fallen under state control. This arbitrariness has turned Bhullar’s into a bare life. Keeping Bhullar in jail is a travesty of justice.

Kawalpreet Kaur is an advocate based in Delhi.