REMISSION AND COMMUTATION OF A SENTENCE – WITH REFERENCE TO BILKIS BANO CASE
Authors – AKASH KHARVI & NISHIT GOKHRU, STUDENTS OF MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI
INTRODUCTION
On the eve of the 75th Independence Day 2022, When the whole nation was jubilantly celebrating freedom from the shackles of oppression of the British the visuals of 11 Convicts of the Bilkis Bano Rape case being released and greeted with flowers and sweets shook the conscience of the entire Nation. A major uproar and questions were looming around the public as to whether is it even legal to release Rape and Murder Convicts under remission policy? What exactly is Remission? What exactly Law of our Land say about it?
CHAPTER XXXII of the Criminal Procedure Code 1973 deals with the provisions related to execution, suspension, remission, and commutation of sentences. Part E of Chapter XXXII specifically deals with the part of Suspension, remission, and commutation of sentences from Section 432 to Section 435. In India, both President and Governor have been given a wide discretionary power relating to the pardon and remission of a particular sentence. To understand the word “Suspension” here means to postpone or stay the applicability of the sentence without changing the nature of the sentence. [1] Remission means the sentence period which a convict has to undergo is reduced but the nature of the punishment remains intact. There have been many debates in India for decades regarding the legality and moral aspect behind granting concessions for the Convicts of heinous power but with the release of 11 convicts in Bilkis Bano this issue of Remission once again came to the limelight.
GUJARAT 1992 REMISSION POLICY – THE POLICY THAT FREED BILKIS BANO RAPISTS
Bilkis Bano was gang raped by 11 members of a particular wing and the criminals later killed 14 members of her family in a quest to seek revenge for the Godhra train incident. Later these criminals were nabbed and all the trial and investigation processes were transferred from Gujarat to Maharashtra so that there will be no witness tampering issue. [2] In 2008, a Special CBI Court constituted for this case convicted all the 11 people and sentenced them to Life Imprisonment. 14 years later the horrors of the incident came into the light once again as the 11 convicts were released from jail based on 1992 Gujarat Remission Policy.
The Remission was granted to the accused based on the writ petition filed by the accused in the Supreme Court claiming their remission to be tried by the Gujarat Government and not the Maharashtra Government also they requested the remission process to be based on the Policy of 1992. They claimed that the term “appropriate government” in section 432(7) qualifies their claim. Supreme Court agreed to their claim and held that case even though was transferred to Maharashtra the appropriate government will still be Gujarat. The apex court also held their remission will be determined by the 1992 policy and not the new Gujarat Remission Policy of 2014. Later as per directives of the Gujarat Government a committee was formed and they gave a clean chit for the convicts to be released. Overall, this process of granting remission looks prima facie valid but still, there are many facets of the Criminal Procedure Code and past judgments which were not taken into consideration before arriving at the Judgment.
ANALYSIS OF SECTION 432 – 435 OF CRPC
Section 432 (1) of the Criminal Procedure Code gives wide discretionary power to the “appropriate Government” to remit or suspend the sentence of a person. The definition of the term what exactly constitutes an “appropriate Government” is given in Section 432(7) of CrPC which states that – The executive power of the Union would extend to the sentence to be commuted, suspended, or remitted, and the Central Government would be the proper government if the Parliament has the exclusive authority to make the law imposing that penalty. [3] except for scenarios covered by Section 432(7)(a), the State would be the proper Government in all other situations where the offender is sentenced or the punishment order is passed within the territorial authority of the concerned State.
Section 432 (2)states that whenever an application is made to suspend or remit the sentence by the person who is convicted the government “may” refer to the presiding judge of the court or the court that had convicted the person their opinion regarding grant of Suspension or remission of the sentence.
Overall, the procedures need to be looked into before the application of the mind by the “appropriate government” in the grant of a proper sentence. If a sentence of remission / Suspension is granted without any proper condition or following requisite procedures in the opinion of the government the same can be called back and the person can be arrested once again without any arrest warrant. From the understanding of Section 432 of Crpc, we can conclude that “appropriate government has a wide power in terms of grant of remission/Suspension even though it may require to seek the opinion of the Court. Grant of remission/ Suspension of a sentence is a very tedious process and conditions should adhere to the fullest or else it can be canceled at any moment and the person can be arrested once again.
Section 433 deals with the power of commutation regarding various punishments ranging from Death sentences to Simple Imprisonment. As per this section “appropriate government without the consent of the person convicted can commute – Life imprisonment, death and simple imprisonment to a much lower punishment provided by the Indian Penal Code. [4] Section 433 A imposes a condition that a person sentenced in life imprisonment and death sentence case will not be released from jail even after the commutation of the sentence unless he completes fourteen years of imprisonment.
Section 434 gives concurrent power to the central government to act on death sentence cases while the state government has the power to deal with the reduction of sentencing. [5] Section 435 gives a wider discretion relating to the reduction of sentencing to the Central Government where the state government has to consult in certain issues before proceeding with the authority of reducing the sentence.
- The Matter is being investigated by Delhi Special Police Establishment regarding the cases of an offense under the Central Act.
- Destruction/Misappropriation/Damage of a property belonging to the Central Government.
- The offense committed by a person while being under the service of the Central Government.
Overall, Section 432-435 of the Criminal Procedure Code deals with both powers and directions of the State and Central Government which they will have to look into before proceeding with the reduction of a sentence.
CAN REMISSION OF A SENTENCE BE CLAIMED AS A RIGHT BY THE LIFE IMPRISONMENT CONVICTS?
Remission is one such policy that is granted not as an act of “charity” but as a discharge of a legal duty that will enable the convict who has stayed in jail an opportunity to contribute to the welfare of society.
Remission is not per-se a legal right or a fundamental right which must be given compulsorily to the person who is sentenced in life imprisonment cases holding the same view Supreme Court in State of Haryana vs. Mahender Singh opined that –State must be considerate in examining the relevant facts and circumstances of the cases while exercising its executive power in granting Remission.
CONCLUSION
The main principle behind the Remission/Suspension/Commutation of a sentence is to allow the offender to change himself and associate with society as a rational individual. This policy of the government is not an act of charity but only a medium that acts as a public interest taking into account all the factors necessary to free a convict. The Recent trend is quite worrying regarding the grant of both commutation and remission of a sentence which is done haphazardly without thinking about the consequence and emotions of the public. Bilkis Bano’s case is a classic example of it where the 11 convicts who raped her and killed her family members were given a grand welcome and projected as “heroes” by a few individuals. Does the law in our country become so feeble that even hardcore rapist and murderer is set free just on the pretext of their well – behavior in jail is a matter of big concern.
The policy of granting Remission/Commutation/Suspension of a sentence should be even more stringent at least for hardcore criminals and rapists so that it doesn’t give license for them to escape and continue with their mundane crimes.
REFERENCES
[1] What is the suspension of sentence? Legal Service India – Law, Lawyers and Legal Resources. (n.d.). Retrieved October 6, 2022, from https://www.legalserviceindia.com/legal/article-7689-what-is-suspension-of-sentence.html
[2] Explained: Gujarat’s 1992 remission policy and why Bilkis Bano case convicts wouldn’t be freed under 2014 policy. https://www.outlookindia.com/. (2022, August 18). Retrieved October 6, 2022, from https://www.outlookindia.com/national/explained-gujarat-1992-remission-policy-and-why-bilkis-bano-case-convicts-would-not-be-freed-under-2014-policy-news-217267
[3] Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered while Imposing Death Sentences, In re, 2022 SCC OnLine SC 1246; Maktool Singh v. State of Punjab, (1999) 3 SCC 321; G. Balachandran v. C.S. Ramachandran Nair, (2017) 13 SCC 745
[4] Union of India v. V. Sriharan, 2014 SCC OnLine SC 287;
[5] G.V. Ramanaiah v. Superintendent of Central Jail, Rajahmudry and Ors 1974 SCC (3) 531