By Abhishek Rai
This article provides a comprehensive examination of the recent Supreme Court verdict in the Bilkis Bano remission case, a landmark legal proceeding stemming from the Gujarat riots of 2002. The analysis explores the historical context, legal provisions, and judicial pronouncements that shaped the final outcome. Delving into the constitutional and statutory framework governing remission in India, the article outlines key provisions and guidelines, emphasizing the importance of the President and Governor's clemency powers. Judicial pronouncements, including the "Prem Raj" and "Laxman Naskar" cases, contribute to the understanding of remission laws. The focus shifts to the Supreme Court's role in the Bilkis Bano case, highlighting the competency of the appropriate government and questioning the validity of Gujarat's remission orders. In conclusion, the article underscores the intricate interplay between constitutional provisions, statutory laws, and judicial interpretations in the realm of remission, emphasizing the judiciary's commitment to justice and human right
The Supreme Court's recent decision in the case of Bilkis Bano marks a significant development in the legal saga stemming from the horrific events of the 2002 Gujarat riots. Bilkis Bano, a survivor of gang rape and witness to the brutal killing of her family during the riots, endured a protracted legal battle for justice.
The timeline of events unfolds with a special court convicting 11 men in January 2008, sentencing them to life imprisonment for the heinous crimes committed against Bilkis Bano and her family. Subsequent legal proceedings saw the Bombay High Court upholding the life sentences in December 2016. The matter eventually reached the Supreme Court, which, on April 23, 2019, directed the Gujarat government to compensate Bilkis Bano with Rs 50 lakh.
May 13, 2022, witnessed a new development as the Supreme Court directed the Gujarat government to consider the plea of one of the convicts for premature release, citing the state's policy from July 9, 1992. This directive culminated in the release of 11 convicts on August 15, 2022, under the remission policy of the Gujarat government.
However, this release triggered public outcry and legal action. Former CPI MP Subhashini Ali, journalist Revati Laul, and professor Roop Rekha Verma jointly filed a Public Interest Litigation (PIL) against the premature release of the convicts, challenging the decision.
The Supreme Court's subsequent intervention, through a suspension of the remission granted by the Gujarat government, garnered widespread public approval. The court issued an ultimatum, instructing the convicts to return to jail within a fortnight. This decision not only upheld the gravity of the crimes committed but also restored faith in the judiciary, particularly for Bilkis Bano, who had fought tirelessly for justice.
The Bilkis Bano case stands as a testament to the resilience of survivors and the judiciary's role in upholding justice, ensuring that those responsible for heinous crimes are held accountable for their actions.
Timeline of the case-
The crimes in question occurred in Gujarat in 2002 but were later shifted to Maharashtra for a fair trial. In 2008, a CBI trial court in Mumbai sentenced the 11 convicts to life imprisonment.
In 2022, Radheshyam Shah, one of the convicts, sought remission under Gujarat’s ‘Remission policy’ of 1992.
Mar 27, 2023: SC notice to Centre, Gujarat government and others on a plea filed by Bilkis Bano.
Aug 7, 2023: SC starts final hearing on petitions challenging the Gujarat government's decision to grant remission.
Aug 15 convicts were released from jail.
Oct 12, 2023: SC reserves its verdict after an 11-day hearing on the petitions, including the one filed by Bilkis Bano.
Jan 8, 2024: SC quashes remission to 11 convicts, saying the orders were "stereotyped" and passed without application of mind. SC directs convicts to surrender to jail authorities within two weeks
Meaning of Remission
Before delving into the Supreme Court's final verdict, it is essential to grasp the concept of remission in India. The dictionary defines remission as the act or state of remitting, implying the reduction or termination of something. In legal terms, remission involves reducing the penalties or sentences imposed on a convicted individual. The Prison Act of 1894 defines the remission system, outlining rules currently in force that regulate the awarding of marks to prisoners and the subsequent shortening of their sentences.
In contrast, 'reprieve' denotes a stay of execution of a sentence, particularly a postponement of a capital sentence. 'Respite' involves awarding a lesser sentence instead of the prescribed penalty, especially when the accused has no prior convictions. This concept is akin to a release on probation for good conduct under Section 360 of the Criminal Procedure Code (CrPC). On the other hand, remission entails a reduction of a sentence without altering its character. In a remission, the guilt of the offender remains unchanged, and the court's sentence is not affected, except that the individual does not serve the entire sentence but is relieved from serving a part of it. Commutation refers to the conversion of a sentence to a lighter one of a different kind. Section 432 empowers the appropriate government to suspend or remit sentences.
It is crucial to note that a remission of sentence does not equate to acquittal. An aggrieved party retains the right to vindicate themselves, emphasizing that remission does not absolve the individual of their guilt
Provisions in law –
Constitutional provisions
President's Powers (Article 72):
The President holds the authority to grant pardons, reprieves, respites, or remissions of punishment.
The President can also suspend, remit, or commute the sentence of any person convicted of an offence.
These powers extend to various scenarios:
Cases involving court-martial punishments.
Offences falling under any law related to the Union government’s executive power.
Instances of death sentences.
Governor's Powers (Article 161):
The Governor is empowered to grant pardons, reprieves, respites, or remissions of punishment.
Similar to the President, the Governor can also suspend, remit, or commute the sentence.
This authority is applicable to individuals convicted under any law falling within the State's executive power.
Scope of Pardoning Power:
The constitutional framework differentiates the pardoning power of the President (Article 72) and the Governor (Article 161).
The scope of the President's pardoning power under Article 72 is broader and encompasses a wider range of scenarios.
These constitutional provisions establish a framework for executive clemency, ensuring that both the President and the Governor have the authority to exercise mercy in appropriate circumstances, thereby providing a system of checks and balances within the legal system's.
Statutory power of remission
Remission in the CrPC a statutory framework, addresses the remission of prison sentences, which involves the cancellation of either the entire sentence or a portion thereof. Section 432 - Powers of the Appropriate Government to suspend or remit a sentence, either in its entirety or partially, and with the discretion to impose conditions as deemed necessary.
Section 433 provides the 'appropriate government' with the power to commute any given sentence to a lesser one, allowing for flexibility in the application of punishment.
State Governments' Authority: This power is specifically accorded to State governments, empowering them to order the release of prisoners before they serve the entirety of their prison terms.
In essence, the statutory framework under the CrPC enables State governments to exercise discretion in managing sentences, offering a legal avenue for the suspension, remission, or commutation of sentences based on the circumstances of individual cases. This statutory authority aligns with the broader goal of achieving a fair and just criminal justice system.
RESTRICTIONS
The statutory provisions under the Code of Criminal Procedure (CrPC) establish specific restrictions on the powers of remission or commutation, ensuring a balance between the authority of the President, Governor, and the justice system:
Restriction under Section 433A of the CrPC imposes limitations on the power of the President and the Governor in cases of death sentences. It explicitly states that the commutation of a death sentence cannot result in a term less than 14 years of life imprisonment. This provision emphasizes the gravity of the offense and sets a minimum threshold for the commutation of the death penalty.
Release After 14 Years: Absent any order under Section 51 of the Indian Penal Code (IPC) or Section 433A of the CrPC, individuals sentenced to death are not released even after completing 14 years of imprisonment. This safeguard ensures that the release process is contingent upon the fulfillment of legal requirements and appropriate considerations.
Remission under Section 432 of the CrPC comes into play concerning definite terms of imprisonment. The authority vested allows for the granting of an "additional" term of imprisonment, which is applied beyond the remission granted under jail manuals or statutory rules. However, it is important to note that in the case of an indefinite sentence, such as life imprisonment, any remission or suspension of the sentence must not be arbitrary or based on the assumption of a fixed duration, such as twenty years.
These statutory restrictions underscore the need for a cautious and principled approach in the exercise of powers related to remission and commutation, particularly in cases involving severe sentences like life imprisonment or death penalty.
Judicial pronouncements on remission-
In “Laxman Naskar v. Union of India,” decided in 2000, the Court established five criteria for considering remission.
• When the crime is a singular act of transgression that has no impact on society.
• The likelihood that the crime will be committed again in the future.
• Whether the offender no longer has the ability to commit crimes.
• If putting the convicted person in prison serves any purpose.
• Family socioeconomic circumstances of the offender.
In disposing of six writ petitions filed under Article 32 of the Constitution, the court issued a common judgment addressing shared issues among the petitions. These writs were filed by life convicts seeking pre-mature release, which was denied by the Government of West Bengal. Despite entitlement to pre-mature release under relevant rules, the convicts' pleas were rejected on extraneous considerations.
The court emphasized that a life sentence equals lifelong imprisonment, and earning remissions does not automatically grant the right to premature release. An exception is noted: if the government has formulated rules or schemes for early release, such rules are to be treated as guidelines under Article 161 of the Constitution.
The judgment highlighted that when government policy or instructions indicate that a life convict has served the specified sentence duration, the convict acquires the right to present their case for consideration under Article 161. The court stressed aligning the exercise of these powers with the prevailing legal position and government policy at the time of consideration
In State (Govt. of NCT of Delhi) vs. Prem Raj, (2003) 7 SCC 121 (“Prem Raj”). Articles 72 and 161 deal with clemency powers of the President of India and the Governor of a State, and also include the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentences in certain cases. It was observed in the said judgment that the powers under Articles 72 and 161 of the Constitution of India are absolute and cannot be fettered by any statutory provision, such as, Sections 432, 433 or 433-A of the CrPC or by any prison rule. It was further observed that a pardon is an act of grace, proceeding from the power entrusted with the execution of the law, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It affects both the punishment prescribed for the offence and the guilt of the offender. But pardon has to be distinguished from “amnesty” which is defined as a “general pardon of political prisoners; an act of oblivion”.
Supreme Court in Sangeet versus State of Haryana (2012) had held that a convict serving life imprisonment does not have a right to be prematurely released on completion of 14 years in jail and that remission should be considered only on a case-by-case basis. In light of this judgment, the Union Home Ministry had issued an advisory in February 2013 prescribing that remission should not be granted in a ‘wholesale manner’
In State Of Madhya Pradesh vs Ratan Singh & Ors, on discussing Section 401 of the erstwhile CrPC (corresponding to Section 432 of the present CrPC) it was observed that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of Section 401 of the CrPC.
Legal Validity of Gujarat government order
The judgment underscores the question of whether the order passed by the Gujarat government was per the law, specifically examining if the Gujarat government qualifies as the appropriate authority to grant remissions. The Constitution and the Criminal Procedure Code (CrPC) empower the appropriate government to grant remissions to convicted individuals based on laid guidelines.
The judgment emphasizes a combined reading of sub-sections (1) and (2) of Section 432 of the CrPC, highlighting the significance of the conviction and sentence by the trial court. It notes that the appropriate government must seek the opinion of the Presiding Judge of the court that conducted the trial before granting remission, especially when an application is filed by or on behalf of a convict seeking remission.
The expression "appropriate Government" in clause (b) of sub-section (7) of Section 432 specifies that it is the government of the state within which the offender is sentenced or where the order is passed, which is deemed the appropriate government. The judgment underscores that the intent of the Parliament is clear – only the government of the state where the offender was sentenced is competent to consider and pass an order remitting the sentence of a convict.
The judgment clarifies that factors such as the place of occurrence of the incident or the place of imprisonment of the convict are not relevant considerations and have been expressly excluded from the definition of the expression "appropriate Government." This establishes the importance of adherence to jurisdictional competence and the legislative intent in determining the appropriate government for remission orders.
If the intention of the Parliament was that irrespective of the Court before which the trial and conviction had taken place, the order of remission can be considered by the Government within whose territorial jurisdiction the offence has been committed or the offender is imprisoned, the same would have been indicated by the definition. When an authority does not have the jurisdiction to deal with a matter or it is not within the powers of the authority i.e. the State of Gujarat in the instant case, to be the appropriate Government to pass orders of remission under Section 432 of the CrPC, the orders of remission would have no legs to stand. This aspect of competency of the Government of State of Gujarat to pass the impugned orders of remission goes to the root of the matter and the impugned orders of remission are lacking in competency and hence a nullity. The writ petition filed by the victim would have to succeed on this reasoning.
The matter doesn't conclude there. Court further held that the consideration had to align with the 1992 Policy of Remission of the State of Gujarat, as per Writ Petition (Crl.) No. 491 of 2022. The argument posited that the Government of Gujarat, in the case of respondents 3 to 13, was deemed the appropriate Government, as per the court's order dated 13.05.2022. Given that the offenses also occurred within Gujarat, it was asserted that the State of Gujarat had no choice but to review the applications of respondents 3 to 13 and grant them remission on 10.08.2022.
However, the petitioner in Writ Petition (Crl.) No. 491 of 2022 countered this by pointing out that one of the convicts, Radheshyam Bhagwandas Shah (respondent No. 3), had initially approached the Gujarat High Court, which directed him to seek remission from the State of Maharashtra. His subsequent application before the Gujarat High Court was dismissed. The petitioner argued that when filing Writ Petition (Crl.) No. 135 of 2022, respondent No. 3 failed to disclose key facts, including approaching the Government of Maharashtra, negative recommendations from CBI and other authorities, and misrepresenting the Bombay High Court's 2013 order. The petitioner contends that the order dated 13.05.2022 is tainted by fraud, rendering it null and void, and not binding on the parties, including Bilkis Bano .
Conclusion:
The Bilkis Bano remission case, arising from the tragic events of the 2002 Gujarat riots, witnessed a pivotal Supreme Court verdict that delved into constitutional, statutory, and judicial facets of remission in India. The analysis explored the historical context, legal provisions, and judicial interventions, establishing the nuanced interplay between executive clemency powers, statutory frameworks, and judicial considerations.
The intricate examination of constitutional provisions showcased the distinct powers of the President and Governor in granting pardons, reprieves, and remissions, emphasizing the checks and balances inherent in the legal system.
The statutory framework under the Code of Criminal Procedure (CrPC) outlined the State governments' authority to suspend, remit, or commute sentences, underscoring the discretion available for managing prison terms. Specific restrictions, notably under Section 433A, highlighted the gravity of offenses like death sentences and set minimum thresholds for commutation.
Judicial pronouncements, such as the criteria established in "Laxman Naskar" and the principles outlined in "Prem Raj," added valuable dimensions to the understanding of remission laws. The Supreme Court's role in the Bilkis Bano case questioned the competency of the Gujarat government, scrutinizing whether it qualified as the appropriate authority for granting remissions.
The concluding observations emphasized the need for alignment with legal positions and prevailing government policies when exercising remission powers. The judgment underscored that the Gujarat government's order lacked competency, raising questions about jurisdictional authority and legislative intent.
In essence, the Bilkis Bano remission case serves as a poignant reminder of the justice system's intricate balance between mercy and accountability. The Supreme Court's intervention not only rectified perceived legal lapses but also reaffirmed the commitment to justice and human rights, providing a landmark precedent for future cases involving executive clemency.
The author of this article is Abhishek Rai, a third-year BALLB student at Vivekananda Institute of Professional Studies, GGSIPU.
REFERENCES-
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