In one of the most harrowing chapters of Indian history, five-month pregnant Bilkis Bano was gang-raped by a mob while she was hiding with 17 others amid escalation of communal violence in Gujarat in 2002. Several others with her were killed and of that seventeen-member group, she was the only woman survivor.
It is really strange and sad that in a case of gang rape and murder, the government has chosen to award remission that is normally not permissible for convicts of such crimes.
While remission is part of human rights when applied objectively and not selectively, in this case from Gujarat, mischief is apparent.
What We Know So Far
All the 11 persons, as per the Gujarat government, have completed 15 years of sentence and are therefore entitled to be considered for award of remission.
Under Section 432 of the Code of Criminal Procedure (CrPC), the appropriate government – the government of Gujarat in the present case - holds power to remit sentence in accordance with the policy framed by it.
There are, however, certain important considerations to be taken into account while examining cases for remission. These mainly include:
The nature of offence and its affect on society at large
The chances of recurrence of committing a crime in the future and the potentiality of the convict-prisoner for re-involvement in criminal activities
The useful purpose to keep such persons behind bars
In addition to these aspects, it is also expected from the appropriate government that they keep in mind the effect of their decision on the victims’ family and society, and the precedent it sets.
The committee that gives recommendation to the appropriate government for grant or denial of remission consists of senior officials of the administration and the police. Before recommending awarding of remission of sentence, the committee must take into consideration all the aspects referred above.
The Opinion of the Presiding Officer of the Court that Recorded Conviction?
It is also important to note that the committee, in this case, is supposed to have taken into account the opinion of the presiding officer of the court that recorded the conviction of the 11 convicts.
This is a statutory requirement in accordance with sub section 2 of section 432 of the Code of Criminal Procedure (which gives the state government power to suspend or remit sentences).
In Union of India v Sriharan, (2016), a Constitution bench of the Supreme Court had held that the procedure stipulated in Section 432(2) is mandatory and the decision of the government on remission should be guided by the opinion of the presiding officer of the concerned court.
The opinion of the presiding judge is necessary as it would enable the government to take the ‘right’ decision as to whether or not the sentence should be remitted.
In the Gujarat case, how all these legal requirements are satisfied is not clear.
Some unofficial sources state that no opinion of the presiding officer of the court that recorded conviction was taken. If true, the government must make its stand clear for not adhering to the requirements of section 432(2) of CrPC.
But if that provision has been complied with then it would also be appropriate to bring the opinion given by the presiding officer in public domain. Because this is a statutory opinion by a senior Judicial officer who is bound to consider each and every fact judiciously.
Thus, if the court opined for awarding remission then people must know the compelling circumstances for that and if a negative opinion was given by the court then reasons for disagreement, which must have been recorded by the appropriate government, deserve to be disclosed.
This is in order to satisfy the people of the country that the process of remission has been objective and not selective .
Why Gujarat Govt Needs to Disclose All Pertinent Facts
Looking at the dubious circumstances of this remission, it would be appropriate for the Gujarat government to disclose the complete facts relating to the process of consideration of the remission application by these eleven convicts, on a public platform.
To maintain public faith in the rule of law, the government must disclose their reasons for this decision – how they viewed factors such as the affect on society at large, the chances of these criminals getting re-involved in crimes, the impact on victims' family and the kind of precedent it is going to lay down.
Pertinently, the appropriate government, while granting remission, also directed that adequate protection be provided to the victims. The very need for such a direction indicates that the appropriate government had doubts about the security of the victims following the release of convicts.
Remission Is Essential for Reformation, But...
Remission is an important aspect in criminal jurisprudence for rehabilitation of criminals.
This is essential for reformation of individuals who indulged in criminal activities but satisfactorily improved their conduct while in prison.
Remission is necessary in most cases, including murder simpliciter (murder with intent to kill). However, remission is not available to the convicts of crimes that have an all-time adverse effect on the society at large. Rape is one such crime.
(Justice Govind Mathur is a former Chief Justice of the Allahabad High Court. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)