Bilkis Bano Case: Power Of Remission

Recently, in an unprecedented turn of events, 11 men convicted of rape and murder in the 2002 Bilkis Bano case were released under a remission policy of the state of Gujarat.

The Gujarat Government permitted the release of the convicts after they had spent more than 15 years in jail. The convicts were sentenced to life Imprisonment.

In January 2008, a Special CBI Court had sentenced the 11 to imprisonment for life on charges of gang rape and murder of seven members of Bilkis Bano's family. The conviction was later upheld by the Bombay High Court.

The remission is being criticised as the offence involved is a diabolical one and the grand celebratory welcome given to the convicts almost seemed surreal.

The Constitution of India confers the power to grant pardon, suspend, remit or commute sentences. 

Article 72 bestows upon the President the power to grant pardons, reprieves or remissions of punishment or to suspend l, remit or commute the sentence of any person convicted of any offence.

The Criminal Procedure Code 1973 (Cr.P.C.) also provides for the remission of sentences. As per Section 433, the appropriate government shall have the power to suspend or remit sentences.

The Section elaborates the amplitude of the phrase "appropriate government" as the central government in cases where the sentence pertains to an offence or a direction has been passed under any law in relation to a matter upon which the Union Government has Executive power.

The issue was further settled by a Constitution Bench judgment in Union of India vs Sriharan (2015) wherein the Court held that in cases where the sentence is imposed by the criminal court under any law which falls within the proviso to Article 73(1)(a) of the Constitution, then the appropriate government would be the Central Government for exercising its power of remission, suspension as well as commutation as provided under Section 432 and 433.

However, the Court held that in case the sentence is passed by the Court within the territorial jurisdiction of the concerned state, then, the concerned state government would be the appropriate government.

The Supreme Court, in State of Haryana vs. Mohinder Singh (2003) 3 SCC 394, had elucidated that the grant of remission should be "informed, fair and reasonable".

The Court, in Laxman Naskar vs. Union (2000) of India, had laid down five questions which should feature in the State's mind before deciding on remission. The five questions are: -

1. Whether the offence is an individual act of crime that does not affect society?

2. Whether there is a chance of the crime being repeated in future?

3. Whether the convict has lost the potentiality to commit crime?

4. Whether any purpose is being served in keeping the convict in prison?

5. Socio economic conditions of the convict's family.

The Judiciary's primary mandate is to uphold the rule of the law. The principle of stare decisis implies that courts should follow their own verdicts and develop the law further. If at all the Supreme Court is petitioned to decide the issue, it will be guided by the above-mentioned objective principles.