In News: The Gujarat government 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 moved the Supreme Court.
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.
Grounds for remission
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.
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:
Whether the offence is an individual act of crime that does not affect the 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; and
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.
Data from Prison Statistics, 2020 show that 61% of convicts in jail are serving life sentences.
The Bilkis case convict
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 SC 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.
Applicability to Bilkis case
The 1992 policy, under which the convict (Shah) had sought remission, did not have the restrictions that were prescribed in the 2014 policy.
The order of the CBI court passed in 2008 did not bar the convicts from applying for remission.
And also 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.
