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Explained: Why 11 convicts in Bilkis Bano gangrape case have walked out of jail

What is the law on remission of sentences of convicts? How did Gujarat's 1992 remissions policy become applicable in the case even though changes had been made in 2014? What did the SC say?

Bilkis Bano casts her vote in the 2019 Lok Sabha elections. (Express Photo by Bhupendra Rana)

The Gujarat government on Monday released 11 convicts in the Bilkis Bano murder and gangrape case of 2002 under its remission and premature release policy after one of the convicts, Radheshyam Shah, moved the Supreme Court. Shah, who had been sentenced to life imprisonment by a CBI court in Mumbai in 2008, had completed 15 years and 4 months in jail.

The law on remissions

Under Articles 72 and 161 of the Constitution, the President and Governors have the power to pardon, and to suspend, remit, or commute a sentence passed by the courts. Also, since prisons is a state subject, state governments have powers under Section 432 of the Code of Criminal Procedure (CrPC) to remit sentences.

However, Section 433A of the CrPC puts certain restrictions on these powers of remission: “Where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.”

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Prisoners are often released on the birth and death anniversaries of prominent leaders and other important occasions. For example, to mark the 76th Independence Day, the Union Ministry of Home Affairs issued guidelines to states to grant special remission for prisoners who have completed at least half their sentence — women and transgender prisoners above the age of 50, male convicts above the age of 60, and terminally ill convicts, among others.

Grounds for remission

States set up a Sentence Review Board to exercise the powers under Section 432 of the CrPC. The Supreme Court has held that states cannot exercise the power of remission arbitrarily, and must follow due process. While the policy varies from state to state, broadly the grounds for remission considered by the Board are the same.

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Seriousness of the crime, the status of the co-accused and conduct in jail are the factors considered for granting remission. In ‘Laxman Naskar v. Union of India’ (2000) the SC laid down five grounds on which remission is considered:

(a) Whether the offence is an individual act of crime that does not affect the society;

(b) Whether there is a chance of the crime being repeated in future;

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(c) Whether the convict has lost the potentiality to commit crime;

(d) Whether any purpose is being served in keeping the convict in prison; and

(e) Socio-economic conditions of the convict’s family.

Jail manuals contain rules that allow certain days of remission in every month for good behaviour of convicts. For those serving fixed sentences, the remission days are accounted for while releasing the convict. However, convicts serving life sentences are entitled to seek remission only after serving a minimum of 14 years. This rule has often led to uncertainty on whether a “life sentence” means 14 years or a sentence unto death, prompting courts in recent times to clarify that “life means the remainder of one’s life”.

Data from Prison Statistics, 2020 show that 61% of convicts in jail are serving life sentences.

The Bilkis case convict

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Bilkis Bano case convict Radheshyam Shah moved the Supreme Court this year after he had completed 15 years and four months of his life term awarded by a CBI court in Mumbai.

In an order dated May 13, 2022, a Bench of Justices Ajay Rastogi and Vikram Nath asked the Gujarat government to consider Shah’s application for premature release “within a period of two months”, as per the state’s 1992 remission policy. (See next section)

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Gujarat was the “appropriate government” to decide on questions like remission or premature release because it was there that “the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court”, the SC said.

The top court had transferred the trial to Maharashtra after Bilkis Bano faced death threats in Gujarat. Radheshyam Shah had moved the SC by way of a writ petition seeking directions to the Gujarat government to consider his application for premature release under the 1992 policy. He argued that Gujarat HC had rejected his prayer on July 17, 2019 on the premise that since the trial had been concluded in Maharashtra, the application for premature release must also be filed in Maharashtra, and not Gujarat.

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Gujarat’s remission policy

The remission policy that was notified in 1992 — and which was in force at the time of the crime and conviction — permitted prisoners to apply for remission “on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment”.

This “premature release/remission resolution” issued by the Gujarat government’s home department on July 9, 1992 — when Chimanbhai Patel was Chief Minister — applied to prisoners whose life sentences were pronounced on December 12, 1978 or later, and who had completed a minimum of 14 years in prison.

Under the policy, the state government was empowered to take a decision to set off the remaining period, depending on the conduct of the prisoner and subject to verification of the same, and a report including the opinion of the Inspector General of Prisons. The policy allowed the IGP Prisons to start the process for early release of such prisoners on completion of 13 years of their life term — to do this, opinions were required to be taken from the concerned district police officer, district magistrate, jail superintendent and advisory board committee.

The opinion of these officials, with the IGP’s opinion/recommendation, were to be then sent to the government, along with nominal roll and the court judgment concerning the prisoner. Under the laid-down procedure, such a proposal of early release was to be sent three months before the completion of 14 years of imprisonment of the prisoner.

Importantly, the 1992 resolution did not list any exceptions with respect to the offences for which the prisoners had been sentenced to life imprisonment.

This policy was invalidated by the SC in November 2012. The court said: “Before actually exercising the power of remission under Section 432 of the CrPC the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remission can, therefore, be given only on a case-by-case basis and not in a wholesale manner.”

Following the SC order and instructions issued subsequently by the Union Home Ministry to all states and Union Territories, the Gujarat government formulated a fresh policy in 2014. This contained an annexure listing cases where remission could not be granted — among them were those in which the prisoners were convicted for a crime that was investigated by an agency under the Delhi Special Police Establishment Act (CBI, which was in the investigating agency in the Bilkis case), and prisoners convicted for murder with rape or gangrape.

Applicability to Bilkis case

Additional Chief Secretary (Home) Raj Kumar told The Indian Express that the 1992 policy, under which the convict (Shah) had sought remission, did not have the restrictions that were prescribed in the 2014 policy. He also said that the order of the CBI court passed in 2008 did not bar the convicts from applying for remission.

“One of the convicts had moved the SC to seek remission as per the 1992 policy of the state government, which did not have the annexure excluding certain categories of convicts from applying for remission — rather than the 2014 resolution that is currently in place — as the order was delivered in 2008,” Raj Kumar said.

Kumar also said: “…The process of remission is not the domain of the judiciary but of the executive, that is the government. Based on the eligibility, prisoners are granted remission after recommendation of the Jail Advisory Committee… The power has been given to the government under the CrPC Section 432 just like convicts on death row can apply for clemency before state Governors or President of India… Among the parameters considered in this case are age, nature of crime, behaviour in prison, and so on… The convicts in this particular case were also considered keeping in mind all the factors, since they had completed 14 years of the life term.”

What happens now

Advocate Shobha Gupta, who represented Bilkis Bano at the Supreme Court earlier, said that the legal remedy available to Bilkis now would be to challenge the government’s order allowing early release of the 11 convicts, either in the High Court or in the Supreme Court.

“It can be challenged like any other government order, seeking that the government order be quashed and set aside. However, it is up to her (Bilkis) on whether she wants to exercise this remedy,” Gupta told The Indian Express.

The Supreme Court had ordered a compensation of Rs 50 lakh for Bilkis in 2019.

(With ENS, New Delhi)

First published on: 17-08-2022 at 03:40:42 am
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