The story so far: The Supreme Court on January 8 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?
Article 72 and 161 of the Constitution provide powers to the President and Governor respectively to grant pardon, commutation, remission, respite or reprieve to a convict. These are sovereign powers vested in the heads of the Union and State executive to be exercised on the advice of the council of ministers.
Apart from this, the appropriate State government under Section 432 of the Criminal Procedure Code, 1973 (CrPC) may remit the whole or part of the punishment to which a convict has been sentenced. In case of life imprisonment convicts, this remission can be done only after a period of 14 years in jail as per Section 433A of the CrPC.
Editorial | Unlawful remission: On the Bilkis Bano case
What is the background to the remission in this case?
The heinous crimes for which the 11 persons were convicted were committed in Gujarat in March 2002. However, considering the need for fair trial, these cases were shifted to Maharashtra by the Supreme Court in 2004. A CBI trial court in Mumbai sentenced the convicts to life imprisonment in 2008.
One of the convicts, Radheshyam Shah, moved the Supreme Court in 2022 seeking directions to the Gujarat government to consider his remission application under the State’s ‘Remission policy’ of 1992. The argument was that this was the policy in force at the time of the commission of offence (2002) and at the time of sentencing (2008). The Supreme Court in an order in May 2022, directed the Gujarat government to consider Shah’s application for premature release under the 1992 policy. The Godhra Jail Advisory Committee (JAC) headed by the District Magistrate unanimously recommended the remission of sentence for the 11 convicts and they were freed in August 2022.
What are the issues involved?
The premature release of the 11 convicts by the Gujarat government raised certain serious legal and moral questions.
Firstly, the provisions of CrPC are quite clear, that the appropriate State government for considering the remission application should have been Maharashtra where the sentencing happened and not Gujarat where the offence was committed or jail term was being served. Also, the law requires the opinion of the presiding judge of the convicting court to be obtained before considering the remission petition, which was not followed in this case.
Secondly, the Supreme Court in Laxman Naskar versus Union of India (2000) had laid down five grounds on which remission is to be considered. The first of these is whether the offence is an individual act of crime that does not affect society. It would be preposterous to surmise that such a heinous crime does not impact the conscience of a civilised society. Thirdly, the 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’.
The Gujarat government had revised its ‘Remission policy’ in 2014 in line with this advisory and had explicitly barred remission for those convicted of rape and murder. However, the instant remission was granted based on the policy of 1992 (that had no such exclusions) as it was in force at the time of conviction.
What did the Supreme Court rule?
The Supreme Court in its order categorically held that the Gujarat government is not the appropriate government to consider the remission petition. It held that the May 2022 order of the Supreme Court, that asked the Gujarat government to consider the remission petitions, was obtained through fraud and suppression of facts before the court. Hence, it held the May 2022 order of the Supreme Court to be a nullity. It further ordered the surrender of all the 11 persons before jail authorities within two weeks. It held that the appropriate government for considering the remission petitions in the instant case is Maharashtra and it may consider their petitions in accordance with law and the guidelines laid down by the Court. This order has reinforced the faith in our judicial system and ‘rule of law’ by setting aside a blatantly perverse order that shook the conscience of society at large and women in particular. It is expected that the Maharashtra government would follow the guidelines laid down by the Supreme Court in the Laxman Naskar case under which such crimes that affects the society at large deserve no mercy.
Rangarajan. R is a former IAS officer and author of ‘Polity Simplified’. He trains civil-service aspirants at ‘Officers IAS Academy’. Views expressed are personal.
