TOPIC : THE DEBATE ON THE POLITICS OF REMISSION – ISSUES AND THE WAY FORWARD

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THE CONTEXT: On August 15,the Gujarat government released 11 convicts who were sentenced to life imprisonment for the heinous murder and gang rape of women during the Gujarat communal riots of 2002.The action by the government has received heavy criticism from all sections of society with more than 130 former civil servants writing an open letter to the Chief Justice of India (CJI) against the action and asking for its revocation.In this article, we will analyze this issue in detail.

THE BASIC CONCEPT OF REMISSION AND LAWS GOVERNING IT

WHAT IS REMISSION?

• Remission is the complete ending of a sentence at a reduced point. Remission is distinct from both furlough and parole in that it is a reduction in sentence as opposed to a break from prison life.
• In remission, the nature of the sentence remains untouched, while the duration is reduced i.e., the rest of the sentence need not be undergone.
• The effect of the remission is that the prisoner is given a certain date on which he shall be released and in the eyes of the law he would be a free man.
• However, in case of breach of any of the conditions of remission, it will be cancelled, and the offender has to serve the entire term for which he was originally sentenced.

REMISSION POWER OF THE PRESIDENT

• Article 72 deals with the clemency power of the President of India. This power extends to:
  o in all cases where the punishment or sentence is by a Court Martial;
  o in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
  o in all cases where the sentence is a sentence of death.
• This power should be exercised on the advice tendered by the executive to the President, who, subject to the provisions of Article 74(1) must act in accordance with such advice.

REMISSION POWER OF THE GOVERNOR

• Under Article 161, the Governor has the power to grant clemency to anyone convicted under any law on a matter which comes under the State’s executive power.
• This power is to be exercised by the Governor as per the advice of the CoM.
• The power to pardon in all cases where the sentence is death, the power lies within President as per Art 72.
• The Supreme Court has held in Maru Ram and Kehar Singh that the power under Articles 72 and 161 of the Constitution are to be exercised by the Central and the State Governments and not by the President or Governor on their own.

REMISSION POWER OF THE STATE GOVERNMENT

• The Code of Criminal Procedure (CrPC) provides for remission of prison sentences, which means the whole or a part of the sentence may be cancelled.
• Under Section 432, the ‘appropriate government’ may suspend or remit a sentence, in whole or in part, with or without conditions.
• This power is available to State governments so that they may order the release of prisoners before they complete their prison terms.
• Under Section 433, any sentence may be commuted to a lesser one by the appropriate government.

REMISSION POWER OF THE CENTRAL GOVERNMENT

• Section 435 says that if the prisoner had been sentenced in a case investigated by the CBI, or any agency that probed the offence under a Central Act, the State government can order such release only in consultation with the Central government.
• The power of remission under the CrPC is different from the constitutional power enjoyed by the President and the Governor. Under the CrPC, the government acts by itself.
• Under Article 72 and Article 161, the respective governments advise the President/Governor to suspend, remit or commute sentences. Despite the fact that it is ultimately the decision of the government in either case, the Supreme Court has made it clear that the two are different sources of power.

KEY TERMS-AN EXPLAINER

• Pardon: It absolves the convict of all sentences, punishments, and disqualifications by removing both the sentence and the conviction. A pardon may be absolute or conditional. It may be exercised at any time, either before legal proceedings are taken or during their pendency or after conviction. The rejection of one clemency petition does not exhaust the pardoning power of the President.
• Parole: It is a system of releasing a prisoner with suspension of the sentence. The release is conditional, usually subject to behaviour, and requires periodic reporting to the authorities for a set period of time.Parole is not a right, and is given to a prisoner for a specific reason, such as a death in the family or a wedding of a blood relative.It may be denied to a prisoner even when he makes out a sufficient case, if the competent authority is satisfied that releasing the convict would not be in the interest of society.
• Commutation: The substitution of one form of punishment for a less severe form. A death sentence, for example, may be commuted to rigorous imprisonment, which may then be commuted to simple imprisonment.
• Furlough: It is similar to parole, but with some significant differences. It is given in cases of long-term imprisonment. The period of furlough granted to a prisoner is treated as remission of his sentence.Unlike parole, furlough is seen as a matter of right for a prisoner, to be granted periodically irrespective of any reason, and merely to enable the prisoner to retain family and social ties, and to counter the ill-effects of prolonged time spent in prison.
• Respite: It refers to the imposition of a lesser sentence in place of one that was originally imposed due to a unique circumstance, such as a convict’s physical disability or a woman offender’s pregnancy.
• Reprieve:It denotes a temporary stay of execution of a sentence (especially one of death). Its purpose is to give the convict enough time to petition the President for a pardon or commutation.

ABOUT THE BILKIS BANO CASE

• Bilkis Bano and her family were attacked on March 3 2002 during the Gujarat Riots. She was gangraped and seven of her family members were murdered.
• The Supreme Court ordered a CBI probe into the incident and arrests were made in 2004. In 2008, the Special CBI Court in Mumbai sentenced the 11 accused to life imprisonment on the charges of conspiring to rape a pregnant woman, murder and unlawful assembly under the Indian Penal Code.
• One of the convicts had approached the Supreme Court for the remission of his sentence. This plea led to the remission of the sentences of the 11 convicts.
• The apex court directed the Gujarat government to look into the issue of remission, following which the government formed a committee. Following the recommendation of the committee, the government decided to release the convicts.

THE CONTROVERSY OVER RECENT GRANT OF REMISSION TO CONVICTS IN GUJARAT

RECENT AFFIDAVIT FILED BY THE GUJARAT GOVERNMENT

• In an recent affidavit filed by the Gujarat government had stated that it decided to release the 11 convicts since they had “completed 14 years and above in prison and their behaviour was found to be good”, and that the Centre had also “conveyed (its) concurrence/approval”.
• Earlier the “Superintendent of Police, CBI, Special Crime Branch, Mumbai” and the “Special Civil Judge (CBI), City Civil and Sessions Court, Greater Bombay”, had opposed the early release.
• The state government cited a “unanimous” recommendation of the Jail Advisory Committee to grant them remission on grounds of “good behaviour”.
• Since then, the apex court has issued notices to the state government on two petitions challenging their release The petitioners have contended that the remission was granted without the Centre’s sanction.
• In their plea, the petitioners stated that the case was investigated by CBI and “accordingly, grant of remission solely by the competent authority of a state government/ state of Gujarat without any consultation with the Central government is impermissible in terms of the mandate of Section 435 of the Code of Criminal Procedure, 1973”.
• Also,the recent point of concern is according to the Gujarat government’s affidavit, the 11 convicted men were out of jail for an average of 1,176 days each before each of them was released.

NOT FOLLOWED THE LATEST POLICY

Critics have pointed out that the convicts were not eligible for remission of sentence under the Gujarat government’s latest 2014 policy, but were released under the old 1992 policy instead.

OPINION OF THE JUDGE NOT TAKEN

The opinion of the judge who conducted the trial or in charge of the district should be taken too. But in this case, it was not taken.

SAY OF THE MAHARASHTRA GOVERNMENT

Section 432(7) of the CrPC says the appropriate government will be “the State within which the offender is sentenced or the said order is passed”. Thus, in this case, it should be Maharashtra Government.

CAN STATE GOVERNMENT GIVE REMISSION TO ANY PRISONER?

• Union may frame guidelines but States are not bound to follow. As 7TH Schedule Prison is a ‘State Subject’.
• If CBI had investigated the case the State must consult the Union government.
• In ‘Laxman Naskar v. Union of India’ (2000) the SC laid down five grounds on which remission is considered:
  1. Whether the offence is an individual act of crime that does not affect the society.
  2. Whether there is a chance of the crime being repeated in future.
  3. Whether the convict has lost the potentiality to commit crime.
  4. Whether any purpose is being served in keeping the convict in prison.
  5. Socio-economic conditions of the convict’s family.
• Also, convicts serving life sentences are entitled to seek remission after serving a minimum of 14 years in prison.

IMPLICATIONS OF THE ISSUE?

ON THE VICTIM RELATED TO THE CASE

• The victim (in this case) Bilkis Bano, has not only suffered the assault of rape but also the loss of her child. It may shake her faith in justice, and the ripple effect may set in motion affecting other women who are struggling in courts for justice.
• Her safety and well-being may get compromised due to the release of the convicts.

ON CONVICTS

• The 11 people who got released by the Government may transfer a wrong message to society and can create further hatred against the minority communities.

IN SOCIETY AT LARGE

• Society will affect the most by the incident, as the rights and sex-based violence in the country may be provoked further.
• It is possible that, technically, the government is within its rights to release murderers and rapists, but it goes against the spirit of the Centre’s current guidelines

THE WAY-FORWARD

THE ROLE OF APEX COURT

The Supreme Court should constitute a Bench:

• To reconsider judgments that allow the remission policy obtaining on the date of conviction, instead of the policy currently in force.
• To address whether the ‘appropriate government’ should be the one in the State where the crime took place, or the State to which the trial was transferred on judicial orders should be responsible for remission.
• To formulate a rational remission policy that will be based on humanitarian considerations and have the scope for reform of the offenders and their sense of remorse.

REFORMATION OF CRIMINALS

• The supreme aim of our prison discipline should be the reformation of criminals, and that there must be in every prison a well-devised and skilfully applied system of rewards for good conduct of prisoners.

POLITICIZATION OF HUMAN RIGHTS

• The human rights of individuals should not be made to suffer at the altar of political manipulations and machinations.

JUSTICE TO VICTIMS OF CRIME

• The Malimath Committee made a series of recommendations to ensure justice to the victims:
  1. The victim should be allowed to participate in cases involving serious crimes and also be given adequate compensation.
  2. If the victim is dead, the legal representative shall have the right to implead himself or herself as a party, in case of serious offences.
  3. The State should provide an advocate of victim’s choice to plead on his/her behalf and the cost has to be borne by the State if the victim can’t afford it.
  4. Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted. This is to be organised in a separate legislation.
  5. A Victim Compensation Fund can be created under the victim compensation law and the assets confiscated in organised crimes can be made part of the fund.

THE CONCLUSION: It is an event of concern for India’s democracy and it also questions equal and fair Justice to all, as the release of convicts challenges the rights of minorities, promotes Gender-related crimes, and even against the fundamental Rights of an individual.

QUESTION FOR MAINS EXAMINATION:

Q1. Critically analyse the remission policy in India. Do you think that the policy is used for political milage in recent times?
Q2. Every saint has a past, every sinner has a future. In the light of this statement discuss whether the remission should be granted to prisoners of serious crimes like rape and murder?
Q3.”Seriousness of the crime, the status of the co-accused and conduct in jail should be the factors considered for granting remission”.Elucidate.