This year, the central government on the eve of “Azadi ka Amrut Mahotsav” asked the respective state governments for the release of convicts who had served at least fifty percent of their term and had a good code of conduct during their sentence. But it explicitly mentioned that the conviction for crimes against women, murder, and rape was “ineligible” for the same. Contrary to this, eleven convicts involved in the Bilkis Bano rape case were set free on 15th August having been granted remission on unjustified grounds putting a malcontent question mark on Indian Criminal Justice System.
Therefore, the author contends that the release of convicts in the Bilkis Bano case is contrary to certain laws on Remission depicting that these have been subject to multiple modifications time and again by the respective state and central governments but when it comes to the actual application, they remain ambiguous and arbitrary at the will of the government. It further justifies why uniform Remission law is the need of the hour and how can it be attained by taking lessons from specific international laws dealing with Remission.
AN OVERVIEW OF THE CASE
Bilkis Bano, a 21-year-old woman, her mother, and her three-year-old daughter was raped and assaulted during the chaos of the Godhra Riots of 2002. Her daughter, couldn’t survive and died on the spot. Aggrieved by the same, she gave her statement at Lim Kheda Police Station, where the head constable did not heed attention to it and sent her to a relief camp. After which she underwent a medical examination, the seriousness of the situation was taken up by NHRC and then the Supreme court which ordered a CBI probe. Due to perpetual death threats being conveyed to Bilkis Bano the case was transferred from Gujrat to Mumbai High Court. Undergoing rigorous investigation, the Bombay high court on 21st January 2008 sentenced life imprisonment to eleven accused charged with gang rape and murder. Subsequently, this year one of the convicts approached Supreme Court contending their release on the ground that they have completed the tenure of 14 years which did set them free.
THE UNJUSTIFIED RELEASE
The clemency power of Remitting sentences in India lies with the President and governors as per articles 72 and 161 respectively. The Convicts in Bilkis Bano were released under the ambit of Crpc section 432(7). However, this section has been subject to change now and then at the convenience of the state and central governments. This year as well the eleven convicts who were related to right-wing politics were released on unjustified grounds of section 432(7). However, section 432(7) of Crpc has exceptions that talk about convicts of woman crime and rape. These are not suggested to be released on any ground throughout their lifetime. The Gujarat Policy of 2014 also says that rape convicts need not be granted any remission. These legislative vicissitudes have been acting as a loophole for a long. Also, they were used in the present case to free the convicts.
The Remission granted to the convicts was based on the 1992 policy of the Gujarat government asking for release It must be noted that there is no adequate proof of the good conduct of the convicts in jail. The case was under the ambit of the Bombay High Court but then the decision to release them have been taken by the Gujarat government which not only questions the ambit of jurisdictions but also puts a question mark over the laws on jurisdictions. The Suo moto in Remission cases has made it extremely difficult for having a uniform law in Remission leading to bizarre freaks and legislative vastitudes.
By letter dated June 28, 2022, the ministry of home affairs of the government of India received opinions from the relevant authorities following the policy from July 9, 1992, and requested approval or the appropriate directives from India, according to the affidavit. The Gujarat government testified before the highest court that the Ministry of Home Affairs, Government of India, had authorized the early release of the offenders in a letter dated July 11, 2022. In addition, the response revealed that the Special Civil Judge (CBI), City Civil and Sessions Court, Greater Bombay, and the Superintendent of Police, CBI, Special Crime Branch, Mumbai, both opposed the application for the convicts’ early release. But, the same was neglected.
Under the provisions of the Code or any other statute, a third-party stranger is not permitted to contest the validity of the court’s decision to grant or deny a “sanction for prosecution” or of the conviction and sentence it imposed during a regular trial”. A state government affidavit said that a remission order that was strictly enacted in line with the law could not be questioned by a stranger or third party. This is not only the sole reason for the abeyance of the Remission laws but also for its misuse.
The court presided over by Justice Ajay Rastogi granted the accused’s request that the state government takes into account his release by the Gujarat remission policy as of July 9, 1992. In holding that this was the practice at the time of Shah and the other accused’s conviction, the court stated, “It has been settled by this court in State of Haryana vs. Jagdish that the application for grant of premature release will have to be considered based on the practice which stood on the date of conviction.”
The Indian Constitution’s Seventh Schedule designates law and order, the police, and prisons as state subjects, and section 432 of the Code of Criminal Procedure (CrPC) gives state governments the authority to commute sentences. Section 435 of the Criminal Procedure Code, however, stipulates that the Union government’s approval is required before any inmates can be released early, particularly when the crime was the subject of an investigation by a central organization like the CBI. The Delhi High Court maintained this in a 2021 ruling that stated the Union government’s approval was required before moving further with remission under section 435 of the CrPC.
Bano’s attorney also cited the rules established in the Swami Shraddananda v. State of Karnataka decision from 2008, claiming that the Supreme Court therein unambiguously stated that the nature of the crime is a component that needs to be taken into consideration. She continued, reiterating the need for remission to concentrate on the effects on victims: “The concerns and safety of the victim are one of the aspects to be looked upon. The question is whether or if the victim should be contacted and given notice since remission is a favor that the accused must obtain.
Senior attorney Mihir Desai emphasized the difference between the remission policies of the Gujarat and Union governments, stating that under to section 435 of the CrPC, “they would have to contact the Union governments.” If this was done, we don’t know about it. There ought to have been. The Union government, he continued, should not have approved the plan if it had been asked because of its policy against pardoning rapists. In any case, listening to the victims’ relatives is essential in any remission-related decisions. The attorney representing Bilkis Bano, Shobha Gupta, cited a 2005 decision by a five-judge Supreme Court bench that stated that life imprisonment meant “until the last breath.” “In addition, there are two types of remissions. Remission for terrible crimes is not a matter of right, and secondly, there are considerations to be made regarding the offense, the nature of the crime, and other variables, she added. Gupta also let the reporter know that she was unable to obtain a copy of the 1992 notice.
There is indeed a strong requirement for judge-made laws in the context of remission because the lack of uniformity in the Remission laws has led to the conundrum in the mind and has been acting as a tool for the politicians and others to mould it in their favor. Also, both the state and federal governments’ post-Nirbhaya policies need to be modified, particularly in light of the horrendous atrocities against women. A uniform judge-made law in the field of Remission is the very need of the hour.
Author(s) Name: Niharika Rai (Rajiv Gandhi National University of Law)