The laws around remission policy

The laws around remission policy

Subject: Polity

Section: Judiciary

Context:

• The Supreme Court on January 8 set aside the remission of 11 convicts  sentenced to life imprisonment for the gang rape of Bilkis Bano and murder of her family, during the 2002 communal riots in Gujarat.
• The remission order was passed by the Gujarat government in August 2022.

Legal and Constitutional Provisions:

• The constitutional provisions under Article 72 and 161 empower the President and Governor, respectively, to grant pardon, commutation, remission, respite, or reprieve to a convict.
• Additionally, Section 432 of the Criminal Procedure Code (CrPC) allows the appropriate State government to remit a convict’s punishment, subject to certain conditions.
• Notably, life imprisonment convicts can only be considered for remission after serving 14 years, as per Section 433A of the CrPC.
• “Remission” in this context refers to the reduction or mitigation of the sentence or penalty imposed on a person.
• It allows the executive authorities to use their discretion in considering factors such as the nature of the offense, the conduct of the convict, and other relevant circumstances to decide whether a reduction in the punishment is warranted.

Supreme Court guidelines on pardoning power:

• Mandatory Central government advice: In Maru Ram v Union of India, the Constitutional Bench of Supreme Court held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the head of the Republic.
• No reason required: The Supreme Court in Ranga Billa case observed that the term pardon itself signifies that it is entirely a discretionary remedy and grant or rejection of it need not to be reasoned.
• Not a matter of right: Supreme Court in Kehar Singh v Union of India held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter of right. The power exercised by the President being exclusively of administrative nature, is not justiciable.
• Limited Judicial review: Pardoning powers under Articles 72 and 161 is subject to judicial review. In Epuru Sudhakar vs Govt. Of A.P., the Supreme Court held that it is a well-set principle that a limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts. Granting of clemency by the President or Governor can be challenged on the following grounds:
  • The order has been passed without application of mind.
  • The order is malafide.
  • The order has been passed on wholly irrelevant considerations.
  • Relevant material has been kept out of consideration.
  • The order is arbitrary.
• The pardoning power is founded on consideration of public good and is to be exercised on the ground of public welfare. Pardon may substantially help in saving an innocent person from being punished due to miscarriage of justice or in cases of doubtful conviction. The hope of being pardoned itself serves as an incentive for the convict to behave himself in the prison institution and thus, helps considerably in solving the issue of prison discipline.

Bilkis Bano Case:

• The crimes in question occurred in Gujarat in 2002 but were later shifted to Maharashtra for a fair trial. In 2008, a CBI trial court in Mumbai sentenced the 11 convicts to life imprisonment.
• In 2022, Radheshyam Shah, one of the convicts, sought remission under Gujarat’s ‘Remission policy’ of 1992.
• Despite legal discrepancies, the Gujarat government granted premature release to the convicts in August 2022, leading to a legal and moral quandary.