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Remission explained in context of Bilkis Bano case

Why, according to the Supreme Court, the constitutional provision of remission, a discretionary power of governments, was wrongly granted to violators of Bilkis Bano

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Remission explained in context of Bilkis Bano case

The Supreme Court of India today quashed the order of premature release granted by the State of in August 2022 to 11 convicts in the Bilkis Bano case. The explains the technical (legal) ground on which the remission was wrong.

Why did the Gujarat government grant remission tthe convicts of the Bilkis Bano case

On 15 August 2022, the eleven men sentenced to life imprisonment in the Bilkis Bano gang-rape case were released from a Godhra jail by the Gujarat government.

The panel that granted remission had two legislators from the BJP, which was the state government at that time, former BJP Godhra municipal councillor, and a BJP women wing member.

To answer the question “why”, I must go technical because I wouldn't know what was going on in their mind and I wouldn't like to speculate about the behind it. Technically, by virtue of Article 72 and 161 of the constitution, the president and governor can grant pardon, suspend, remit or commute a sentence given by a court

In addition, constitutional provisions like the Criminal Procedure Code (CrPC), 1973, provides for suspension, remission and commutation of sentences. Sections 432, 433, 433A, 434 and 435 empower the government to suspend or remit sentence. 

Section 432 incorporates the provisions of Section 401 and 402(3) of the CrPC, which is yet to be replaced by the Bharatiya Danda Samhita. This section does not give any power to a government to reverse the judgment of a court but provides them the power of remitting the sentence. While Article 161 of the constitution speaks of grant of reprieves, pardons and remissions, Section 432 of the CrPC speaks of remission or suspension with some conditions.

Finally, the authority of a government to grant remission or to suspend sentence under Section 432 of CrPC is independent of the power conferred on the governor under Article 161 of the constitution, while both the government and the governor have concurrent powers in regard to suspension, remission and commutation of sentence.

On what grounds has the Supreme Court quashed the State of Gujarat's order? Justice Nagarathna, who was heading the bench, said Gujarat's grant of remission to the men was an “abuse of discretion”. What does it mean? 

In the legality explained above, there are also restrictions on the power of discretion of the government. First of all, even before these remissions were struck down by the Supreme Court, the judge who had sentenced the rapists had said that the Government of Gujarat had set a bad precedent with the convicts' early release. He had warned that the move would have wide ramifications.

Now, the Supreme Court's said the remission orders were “stereotyped” and passed without application of mind. The court directed the convicts to surrender to jail authorities within two weeks.

The highest court implied that it was a travesty that the very government from whose jurisdiction the case was taken away would decide to remit the sentences of the convicts. Since the trial and conviction happened in Maharashtra, only the Maharashtra government had this prerogative.

The term ‘remission' is being used time and again pertaining to this case. What does it mean, and how does it differ from suspension and commutation? 

Simply put, remission means that the convicts are told they would not continue to rot in jail. Suspension means the government is withholding the execution of the sentence whereas commutation means a sentence is reduced in severity by changing it to imprisonment for life.

Legally, the provisions are different. If the convicts apply to the government for remission, which was not what happened in the Bilkis Bano case, a judge should be a party to the decision.

But either in the presence or the absence of an application, the convicts must fulfil some conditions.

Who has this power of remission, suspension and commutation?

Only the president of the country, or the governor of the state or lieutenant governor of the union territory that has the jurisdiction can commute a sentence whereas the union and state governments or a high court with the jurisdiction can both remit and suspend sentences.

What are the restrictions on these powers which the Supreme Court applied?

The first restriction comes from Section 433A which says that the remission cannot happen before the convicts have served at least 14 years jail term.

Second, no authority can read down or interpret Section 433A of the CrPC with the aid of the changes in the Indian Penal Code (Amendment) Act.

Third, a convict cannot say that he has served jail for 14 or 20 years and, therefore, he is entitled to remission. It is not his entitlement or right.

Fourth, The CrPC does not confer wide powers of remission and commutation of sentences. Rather, it intends to carve out an extreme category from the broad generosity of such executive action.

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