[Editorial] Bilkis Bano Case- Reviewing Remission

What is remission?

Under Indian laws, the duration of a sentence can be cut short, without changing the nature of the sentence, under special circumstances. This is called remission.
Remission isn’t a right. It is based on executive discretion. This was noted by the apex court in State of Haryana vs. Mahender Singh case.
The purpose of remission is to reform criminal justice and to protect human rights.
There are 3 types of remission:
- Constitutional
- Statutory
- Those in accordance with jail manuals
The Constitution gives this remission power to certain constitutional authorities:
- As per Article 72, the President can remit a sentence under special circumstances.
- The Governor enjoys similar powers under Article 161.
- The governments can suspend/ remit sentences using its powers under CrPC Section 433. The government is required to present its argument in the court for this.

What is the Bilkis Bano case about?

This refers to the gang rape of Bilkis Yakub Rasool, who was 5 months pregnant at that time, in 2002. The mob, of 20 to 30 people, had also murdered 7 of her family members- including a 3 year old girl.
This incident took place during the post-Godhra communal riots.
- In February 2002, the Sabarmati Express train burning incident saw the death of 59 people.
- Following this, the state witnessed widespread communal violence.
In this case, 11 individuals were convicted and sentenced to life imprisonment. This followed 4 years of efforts, involving the National Human Rights Commission, the CBI and the Supreme Court.
The court had also punished the police officer, who had refused to file Bano’s complaint, with a 3 year prison term.
Recently, these 11 convicts were released after serving a little over 14 years of their term.

Why were they released?

One of the convicts had moved the apex court after his remission plea was dismissed by the Gujarat High Court, on grounds that the application should have been filed in Maharashtra (where the trial concluded).
The plea sought consideration of remission application under the older remission policy, rather than the newer 2014 policy. The plea cited a 1992 circular, quoted in 2012 Gujarat HC order, that pertained to the early release of life term prisoners who had served 14 clear years imprisonment.
Notably, the 2014 policy doesn’t allow the premature release of those convicted for murder and gang rape.
The Supreme Court admitted the plea and passed it on to the Gujarat government for examination, as it was under its jurisdiction that the crime took place. The court also directed that the application be considered based on the policy that was valid on the conviction date.
The state government formed a panel to consider the application. The panel ‘unanimously’ decided in favour of remission. Following this, the government gave the green light for the remission.

Why is it concerning?

It is unacceptable that convicts found guilty of multiple murders (including that of a child) and gang rape were found suitable for premature release. The celebration of their release with garlands and sweets adds insult to the injury.
There are specific legal grounds that throws the government’s decision into question.
- The state government took the decision without consulting the central government. According to CrPC Section 435, such a consultation is mandatory when it comes to cases that were probed by the CBI.
- The composition of the panel that considered the plea is also a source of concern- for it had legislators on board. A remission panel should consist of senior government officials who are in charge of home affairs or law, district judges, prison superintendent and officers concerned with probation and offenders’ rehabilitation.
- The district judge’s objections were disregarded- throwing a shadow on the legitimacy of the decision.

What is the way ahead?

The silver lining is the wide-spread opposition to this decision. Public-spirited activists have already challenged the release in the Supreme Court.
The Supreme Court could constitute a Bench, of appropriate size, to reconsider the judgement on following the remission policy that was in force at the time of conviction, rather than the current policy.
It could also consider the question of which state government has the jurisdiction- the one where the crime took place or the one where the trial took place on judicial orders.
The court could also consider outlining a rational remission policy– informed by humanitarian considerations, scope for offenders’ reform and their sense of remorse.

Conclusion:

It took a great deal of courage and faith on the part of the victim to pursue justice for the horrendous crime. The recent release is bound to damage the trust placed by the masses on the judicial system. Hence, the apex court needs to step in and undo the injustice.