Editorial of the Day (11th Jan): Laws around Remission Policy

Context: The Supreme Court set aside the remission of 11 convicts sentenced to life imprisonment for the gang rape of Bilkis Bano and murder of her family, during the 2002 communal riots in Gujarat. The remission order was passed by the Gujarat government in August 2022.

What are Clemency Powers?

• President and Governor Pardoning Powers:
  • Article 72: Empowers the President of India to grant pardon, commutation, remission, respite, or reprieve to convicts.
  • Article 161: Grants similar powers to the Governor of a state.
  • These powers are sovereign rights held by the heads of the Union and State executive, exercised based on the advice of their respective councils of ministers.
• State Government’s Role:
  • Section 432, CrPC: Allows the state government to remit all or part of a convict’s sentence.
• Specifics for Life Imprisonment:
  • Section 433A, CrPC: Stipulates that remission for life imprisonment can only be granted after the convict has served 14 years in prison.

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Timeline of Bilkis Bano Case and Remission Controversy:

• 2002, March: Heinous crimes committed in Gujarat during communal riots.
• 2004: Supreme Court transfers cases to Maharashtra for fair trial.
• 2008: CBI court in Mumbai sentences 11 convicts to life imprisonment.
• 2022, May: Radheshyam Shah (one convict) petitioned the Supreme Court for remission under Gujarat’s 1992 policy.
• 2022, May: Supreme Court directs Gujarat government to consider Shah’s remission application.
• 2022, August: Godhra Jail Advisory Committee recommends remission for all 11 convicts.
• 2022, August: All 11 convicts released from prison.
• 2023, January: Supreme Court strikes down remission orders, convicts directed to surrender.

What Are the Issues Involved?

• Jurisdictional Confusion:
  • The Crime and Sentencing Location: According to the CrPC, the appropriate state for considering remission should be Maharashtra, where the sentencing occurred, not Gujarat, where the crime was committed or the jail term served.
  • Bypassing Judicial Opinion: The law mandates obtaining the opinion of the presiding judge of the convicting court before considering a remission petition, which was not done in this case.
• Supreme Court Guidelines in:
  • Laxman Naskar Case 2002: The Supreme Court set five criteria for remission. The first criterion questions whether the crime is an individual act not affecting society. Given the heinous nature of the crime in this instance, it significantly impacts societal conscience.
  • Sangeet vs State of Haryana, 2012: It was held that life imprisonment convicts don’t inherently have the right to premature release after 14 years. Remission should be on a case-by-case basis.
• Following this judgement, the Union Home Ministry in 2013 advised against granting remission wholesale.
• Gujarat Government’s Remission Policy Conflict:
  • The 2014 Revision: Gujarat revised its remission policy in 2014, in line with the 2013 advisory, specifically barring remission for those convicted of rape and murder.
  • Application of the 1992 Policy: Despite the revised policy, the remission in question was granted based on the 1992 policy, which was in effect at the time of conviction and lacked such exclusions.

Supreme Court Ruling

The Supreme Court ruled that the Gujarat government was not the appropriate authority to consider the remission petition for the 11 convicts. The Court found that its May 2022 order, which asked Gujarat to consider the remission, was obtained through fraud and suppression of facts. Consequently, it declared this order null and void.

Conclusion

This decision, which overturned a controversial order, is seen as reinforcing faith in the judicial system and the rule of law, particularly in matters affecting societal conscience and women’s rights. The expectation is that the Maharashtra government will adhere to the Supreme Court’s guidelines, which suggest that crimes with a significant societal impact are undeserving of mercy.

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