In News: Supreme Court judge, Justice Bela M. Trivedi recused herself from hearing a writ petition filed by Bilkis Bano against a Gujarat government decision to prematurely release 11 men sentenced to life imprisonment for gang-raping her during the 2002 riots.
The convicts were released under the Premature release policy of the Gujarat 1992.
Context:
Bano has argued that the early release of the convicts amounted to a violation of her fundamental right to life.
She has said the remission policy of the State of Maharashtra, where the trial happened, and not Gujarat would have governed the case.
The Government of India conveyed the concurrence/approval of the Central government under Section 435 of the Code of Criminal Procedure for premature release of 11 prisoners.
Bilkis Bano case:
Bilkis Bano and her family were attacked in 2002 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.
Rules of Remission:
Life imprisonment means convicts remain in jail for the whole of their life.
However, they can be released by the State and Central governments but not before they complete 14 years, by remitting the remaining prison term.
Judicial decisions advocate both subjective and objective norms for remission.
Courts have ruled that remission should be informed, fair and reasonable, and not arbitrary; that it should not undermine the nature of the crime.
In Laxman Naskar vs Union of India (2000), the Supreme Court laid down five considerations:
whether the offence is an individual act of crime that does not affect society;
whether there is a chance of the crime being repeated in future;
whether the convict has lost the potentiality to commit crime;
whether any purpose is being served in keeping the convict in prison;
socio-economic conditions of the convict’s family.
A remission panel usually consists of government officials, officers in charge of parole, rehabilitation and probation of offenders and prison officials.
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”.
Challenges:
Brutal and horrific nature of the crime of gang-rape.
Against Current remission policy (2014) – It bars those found guilty of heinous crimes from being given remission.
“Prisoner convicted for murder with rape or gang rape” are not eligible
Absence of mandatory consultation required under Section 435 of the Code of Criminal Procedure (CrPC), in a case investigated by the CBI, prior to remission.
However, the remission has been granted by the Gujarat government without consulting the Centre.
The Supreme Court has also ruled that ‘consultation’ means ‘concurrence’ in this regard.
Presence of political functionaries on the committee that recommended remission may have influenced the decision. It contained some Bharatiya Janata Party (BJP) functionaries, including two MLAs.
The injustice of exceptionalism – the district judge is understood to have opposed the grant of remission.
The 1992 policy did not clearly state eligibility criteria.
Convicts in the Bilkis Bano case were not eligible under the 2014 policy for remission.
Suggestions:
The question whether Gujarat is indeed the appropriate government may also be raised again, even though the order by which the Supreme Court wanted their remission plea to be considered has already given its finding.
In 2003, the Justice Malimath Committee submitted a report advocating a permanent statutory committee to prescribe sentencing guidelines to reduce ambiguity in the award of such sentences.
In April 2022, a Supreme Court bench, led by Justice U Lalit, revoked the death sentence of Mohammad Firoz, a man convicted for the rape and murder of a four-year-old girl.
Way forward:
There is a need to balance retributive justice with restorative justice
Justice must not be denied on account of jurisprudence and technicalities of law.
