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Remission in Bilkis Bano Judgment

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Source: The Hindu


Recently the Supreme Court set aside the remission granted to the 11 life convicts of the Bilkis Bano rape case also known as Bilkis Yakub Rasool v. Union of India & Ors. (2022). The remission was granted by the State of Gujarat under its remission policy of 1992 on 10th August 2023. Before the order of remission, a division bench of SC held that the State of Gujarat was the appropriate government under the Code of Criminal Procedure, 1973 (CrPC) to grant the remission.

What is Remission under the Code of Criminal Procedure, 1973 (CrPC)?

  • About:
    • Remission is a legal concept that involves the reduction or mitigation of a punishment imposed by the court.
  • Section 432 CrPC - Power to Suspend or Remit sentences:
    • Section 432 of the CrPC grants the state government or the central government, depending on the nature of the offense, the power to suspend or remit the sentence of a convicted person.
    • The exercise of this power is contingent upon certain factors, such as the nature of the offense, the character of the offender, and the circumstances of the case.
    • The discretion conferred under Section 432 is not unbridled.
  • Section 433 CrPC – Power to commute sentences
    • Section 433 allows the appropriate government to substitute a less severe punishment for the one originally imposed.
    • Court can commute sentence of death, imprisonment for life, rigorous imprisonment, and fine.

What were the Views of Supreme Court on Remission in Bilkis Bano Case?

  • Petitioner’s Ground:
    • The petitioner raised the issue that the power to grant remission was exercised without application of mind, and that the said power was exercised by the Governor having regard to extraneous considerations and even without the aid and advice of the Government, namely, the concerned Minister.
  • Liberty and Rehabilitation:
    • Liberty is one of the most precious and cherished possessions of a human being and he would resist forcefully any attempt to diminish it.
    • Similarly, rehabilitation and social reconstruction of a life convict, as an objective of punishment become a paramount importance in a welfare State.
    • The State has to achieve the goal of protecting society from the convict and also rehabilitate the offender.
  • Purpose of Remission Policy:
    • The remission policy manifests a process of rehabilitating a person who, under certain circumstances, has indulged in criminal activities and is required to be rehabilitated.
    • Thus, punishment should not be regarded as the end but only a means to an end.
    • Relevancy of circumstances to an offence such as the state of mind of the convict when the offence was committed, are factors to be taken note of.
  • Remission by Gujarat Government Invalid:
    • In view of Section 432 (7) read with Section 432 (1) and (2) of the CrPC, court held that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of 11 convicts as it was not the appropriate Government within the meaning of the aforesaid provisions.
    • Hence, the orders of remission dated 10th August 2022 made in favour of 11 convicts were declared illegal, vitiated and therefore, quashed.

What were the Landmark Cases of Remission Cited in Bilkis Bano Case?

  • Gopal Vinayak Godse v. State of Maharashtra (1961):
    • It was observed by SC that “Remission limited a time, helps computation but does not ipso jure operate as release of the prisoner”.
      • But, when the sentence awarded by the Judge is for a fixed term, the effect of remissions may be to scale down the term to be endured and reduce it to nil, while leaving the factum and quantum of sentence intact.
    • However, when the sentence is a life sentence, remissions, quantified in time, cannot reach a point of zero. Since Section 433-A of CrPC deals only with life sentences, remissions cannot entitle a prisoner to release.
  • Maru Ram v. Union of India (1980):
    • In this case, SC said that it is true that there appears to be a modern trend of giving punishment a color of reformation so that stress may be laid on the reformation of the criminal rather than his confinement in jail which is an ideal objective.
    • At the same time, it cannot be gainsaid that such an objective cannot be achieved without mustering the necessary facilities, the requisite education and the appropriate climate which must be created to foster a sense of repentance and penitence in a criminal so that he may undergo such a mental or psychological revolution that he realises the consequences of playing with human lives.
  • Laxman Naskar v. State of West Bengal (2000):
    • In this case, SC stipulated the factors that govern the grant of remission namely:
      • Whether the offence is an individual act of crime without affecting the society at large?
      • Whether there is any chance of future recurrence of committing crime?
      • Whether the convict has lost his potentiality in committing crime?
      • Whether there is any fruitful purpose of confining this convict any more?
      • Socio-economic condition of the convict’s family.
  • Epuru Sudhakar v. State of AP (2006):
    • SC held that judicial review of the order of remission is available on the following grounds:
      • non-application of mind;
      • order is mala fide;
      • order has been passed on extraneous or wholly irrelevant considerations;
      • relevant materials kept out of consideration;
      • order suffers from arbitrariness.