Context: Supreme court bench has quashed the order of Gujarat Government to grant remission of 11 convicts sentenced to life imprisonment for multiple murders and gang rapes, including that of Bilkis Bano, during the 2002 communal riots in Gujarat.
The Supreme Court recently quashed the remission of 11 convicts whose life imprisonment sentence was given by a special court and upheld by the Bombay High Court. They were later released by the Gujarat government under its remission policy, sparking a debate about the criminal justice system of India. In this article, we will discuss the analysis of the above issues in the following article.
Facts and timeline of the case:
- 2002: Bilkis Bano was raped, and her family members murdered in the Gujarat Riots of 2002.
- 2003: Supreme Court ordered an enquiry into the matter.
- 2008: a special court convicted 11 men and sentenced them to life imprisonment.
- 2017: Bombay HC upholds sentence
- May 2022: Supreme Court directs Gujarat government to consider the plea for premature release under the remission policy of State of Gujarat 1992.
- August 2022: As per governments remission policy, 11 convicts were released from Godhra sub jail.
- November 2022: Bilkis moves Supreme Court challenging the remission.
- December 2022: Court dismisses her plea stating that State of Gujarat was the appropriate government competent enough to examine the application of premature release.
- 2023: Court notice to Union and Gujarat Govt. on review filed by Bilkis Bano challenging the remission.
- 2024: Court quashes remission to 11 convicts.
Regarding Remission:
Remission implies the executive’s power to reduce the period of sentence without reducing its character. For example, a sentence of rigorous imprisonment of 3 years can be remitted to rigorous imprisonment of 2 years.
Remission is rooted in the logic that, ultimately, prisons are meant to be rehabilitative spaces rather than simply being an instrument to carry out retributive punishment.
About Prison Rules: Prison is a State subject which allows the state government to frame prison rules. As a result, prison rules of each State identify certain reformative and rehabilitative activities that the prisoners can undertake in order to earn remission in the form of days. The total number of days earned in remission is deducted from the actual sentence imposed by the court.
Constitutional provisions with respect to remission:
- Article 72: The President has the power to pardons, reprieves, respites, or remission of punishment or to suspend remit or commute the sentence of any person convicted of any offence.
- Article 161: Power of the Governor to pardon, reprieve, respite a punishment or suspend, remit, or commute the sentence, which is given on the basis of the laws prevalent in the State, to which the executive power of the State extends.
- Code of Criminal procedure: Section 432 of Code of Criminal Procedure 1973 deals with the issue of remission. It reads-
Section 432. Power to suspend or remit sentences. — (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence, or remit the whole or any part of the punishment to which he has been sentenced.
Further, sub section (7) of Section 432 defines “appropriate Government” it reads:
(7) In this section and in section 433, the expression “appropriate Government” means, —
(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government.
(b) in other cases, the Government of the State within which the offender is sentenced, or the said order is passed.
Concepts related to pardoning powers:
- Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
- Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.
- Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
- Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
- Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.
As evident from the above provision, the executive has been given significant discretion in granting remission, leading to potential transparency issues in decision-making process. To formalise the process of granting remission and ensure that justice is not carried out arbitrarily, the Supreme Court, in the Laxman Naskar case, specified that the committee should consider certain factors while upholding individual cases of remission. The decision should be based on the following factors:
i. Whether the offence is an individual act of crime without affecting society at large?
ii. Whether there is any chance of future recurrence of committing a crime?
iii. Whether the convict has lost his potentiality in committing a crime?
iv. Whether there is any fruitful purpose in confining this convict anymore?
v. Socio-economic condition of the convict’s family.
Supreme Court on the Judicial Review of the order of Remission
In Epuru Sudhakar vs State of Andhra Pradesh (2006) case, the Supreme Court dealt with issue of the judicial review of an order of remission and said that the review will be available only in the following cases:
• When there is a non-application of mind.
• Relevant materials have not been considered.
• The order is mala fide or based on irrelevant considerations or suffers from arbitrariness.
Supreme Court observations in the context Bilkis Bano Case:
- Violation of law: The Supreme Court said the grant of remission to 11 men serving life sentence in the Bilkis Bano case was a “classic case” of using a Supreme Court order to violate the law.
- Defrauded Supreme Court: SC observed that it was defrauded into delivering its decision on May 13, 2022. The respondents had not divulged a series of facts which would have tilted the Supreme Court’s decision against them.
- Act of misrepresentation of facts: May 2022 decision suffered from a misrepresentation made by a convict that there was a “divergence in opinion” between the Bombay and Gujarat High Courts. Gujarat High Court order of March 13, 2020, refused remission and reiterated its 2019 position to approach the Maharashtra government was never challenged or set aside.
- State of Gujarat acted in tandem with complicit: Court observed that the State of Gujarat acted in tandem and was complicit with what the respondent had sought before this court.
- Application of mind while granting remission: Court observed that there should be an application of mind on the remission application to eliminate discretionary en masse release of convicts on ‘festive’ occasions. Each release requires a case-by-case scrutiny.
- The grant of remission should be well-informed, reasonable, and fair to “all concerned”.
- Outline factors before granting remission: Court has given a brief outlining of the factors a state government should consider while entertaining the remission application of a convict.
- Opinion of trial judge must be sought: The opinion of the presiding trial judge should be mandatorily sought and only the State in which the convict was convicted would be competent under Section 432 to consider the remission plea.
- The policy of remission applicable at the time of the conviction could apply, and only if for any reason, the said policy cannot be made applicable, a more benevolent policy, if in operation, could apply.
Judgement:
- State is bound by rule of law: Rule of law means, no one, however high or low, is above the law; it is the basic rule of governance and democratic polity.
- Rule of law must prevail: If ultimately rule of law is to prevail and the disputed orders of remission are set-aside by us, then the natural consequences must follow. Therefore, the released persons are directed to report to the concerned jail authorities within two weeks from the date of judgement.
The rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny. But, a blanket denial of remission for crime categories, rather than ensuring effective compliance with remission conditions, takes us towards a punishment framework that is retributive. Therefore, a balanced approach that promotes justice while upholding a reformative approach towards the citizen is the need of the hour.