Remission

The Supreme Court nullified the Gujarat government’s remission for 11 men convicted in the gangrape and murder of Bilkis Bano during the 2002 riots, ordering their surrender within two weeks.

What is remission?

• Remission commonly refers to the reduction or moderation of a sentence imposed on an individual convicted of a crime.
• It involves reducing the duration of imprisonment or other penalties, considering various factors.
• In essence, it entails a reduction in the time to be served without altering the fundamental nature of the sentence.
• The State may grant early release to offenders through remission policies, considering factors like good conduct, rehabilitation, time served, and health.
• In the case of remission, the guilt of the offender and the court’s sentence remain unaffected.
  • The individual is not subjected to incarceration for the entire duration of the sentence but is granted relief from serving a portion of it.
• A remission of sentence, however, does not imply acquittal, and an aggrieved party retains the right to challenge the remission order.

Supreme court’s definition:

• Referring to the Constitution Bench in Sarat Chandra Rabha vs. Khagendranath Nath, the Supreme Court, in the Bilkis Bano Judgment, explained the meaning of remission, highlighting its interpretation.
• An order of remission does not erase the offense or the conviction, it solely affects the execution of the sentence.
• While a convicted person typically serves the full sentence imposed by the court, remission allows them to be exempted from serving a specific part of it.
• Remission does not interfere with the court’s order; it only impacts the execution of the sentence, releasing the convicted person from the obligation to undergo the full imprisonment term, while the conviction and original sentence by the court remain unchanged.
• The power to grant remission is an executive power and differs from the authority of an appellate or revisional court, as it does not modify the sentence but rather curtails its enforcement as an act of clemency.

Who has Power to Grant Remission?

• The Constitution grants the President and the Governor the sovereign authority of pardon, commonly known as mercy or clemency power.

Presidents power:

• Article 72 empowers the President togrant pardons, reprieves, respites, or remissions of punishment, and to suspend, remit, or commute the sentence of any individual convicted of an offense.
  • This authority extends to cases involving court-martial, offenses falling under laws related to the Union government’s executive power, and instances of death sentences.

Governors power

• Under Article 161, a Governor is authorized to grant pardons, reprieves, respites, or remissions of punishment.
• Additionally, the Governor can suspend, remit, or commute the sentence of individuals convicted under any law falling within the purview of the State’s executive power.

Remission of the government:

• Under Section 432, the ‘appropriate government’ may suspend or remit a sentence, in whole or in part, with or without conditions.
• This power is available to State governments, allowing them to order the release of prisoners before they complete their prison terms.
  • In the case of life imprisonment convicts, this remission can be done only after a period of 14 years in jail, as per Section 433A of the CrPC.
• Under Section 433, the appropriate government has the authority to commute any sentence to a lesser one.
  • However, Section 435 specifies that if the prisoner had been sentenced in a case investigated by the CBI or any agency probing the offense under a Central Act, the State government can order such release only in consultation with the Central government.
• In the case of death sentences, the Central government may concurrently exercise the same power as the State governments to remit or suspend the sentence.

Difference between power of remission of under constitution and CrPC:

• Under the CrPC, the government acts independently.
• Article 72 and Article 161, however, involve the respective governments advising the President or Governor to suspend, remit, or commute sentences.
• While the ultimate decision lies with the government in both cases, the Supreme Court has clarified that these are distinct sources of power.
  • Section 432 and Section 433 of the Code are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power.

Background to the remission in Bilkis Bano case?

• The 11 persons were convicted for heinous crimes committed in Gujarat in March 2002.
• However, to ensure a fair trial, these cases were transferred to Maharashtra by the Supreme Court in 2004.
• A CBI trial court in Mumbai sentenced the convicts to life imprisonment in 2008.
• One of the convicts approached the Supreme Court in 2022, requesting directives to the Gujarat government to review his remission application under the State’s ‘Remission policy’ of 1992.
• The argument put forth was that this policy was in effect at the time of the offense in 2002 and at the time of sentencing in 2008.
  • The Gujarat government had revised its ‘Remission policy’ in 2014 in line with this advisory and had explicitly barred remission for those convicted of rape and murder.
• In May 2022, the Supreme Court issued an order directing the Gujarat government to consider Shah’s application for premature release under the 1992 policy (that had no such exclusions).
• Subsequently, the Godhra Jail Advisory Committee (JAC), led by the District Magistrate, unanimously recommended the remission of sentences for the 11 convicts, leading to their release in August 2022.

Why did Supreme Court nullify the Gujarat government’s remission?

• The Supreme Court in its order categorically held that the Gujarat government is not the appropriate government to consider the remission petition.
• The appropriate State government for considering the remission application should have been Maharashtra where the sentencing happened and not Gujarat where the offence was committed or jail term was being served.
  • As per the provisions of Section 432 of the CrPC, an application for remission can only be before the government within whose territorial jurisdiction the applicant was convicted, and not where the offence took place.

Also, the law requires the opinion of thepresiding judge of the convicting court to be obtained before considering the remission petition, which was not followed in this case.

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