INTRODUCTION:
The Supreme Court began deliberating Bilkis Bano’s appeal contesting the early release of the men found guilty of raping her and murdering her family members in Gujarat during the 2002 post-Godhra communal riots. Her attorney emphasized that the men were thirsty for blood and questioned whether the convictions warranted the pardon granted to them. The question of whether Maharashtra or Gujarat should be the appropriate government to pardon prisoners will be the main topic of discussion in my blog.[1]
EVENTS IN THE CASE SO FAR:
Amidst the post-Godhra communal rioting in Gujarat’s Dahod region, Bano, a twenty-one-year-old pregnant woman, was gang-raped on March 3, 2002. The rioters also killed seven members of her family, one of them was her three-year-old daughter. In 2008, a Mumbai sessions court found the defendants guilty of violating Sections 302 and 376(2)(e)(g) read with Section 149 of the IPC 1860[2], and sentenced them to life in prison after the trial was moved to Maharashtra. The 11 defendants’ convictions and life sentences were affirmed by the Bombay High Court panel in 2017.
Radheshyam Shah, one of the prisoners, petitioned the Gujarat High Court for the remission of his sentence after serving nearly 15 years in prison. However, due to a lack of jurisdiction, the Supreme Court dismissed his appeal. The ruling stated that the Maharashtra government, not the Gujarati government, was the proper authority to determine his pardon. However, once the case made its way to the highest court via appeal, a bench of Justices Ajay Rastogi and Vikram Nath determined that since the crime was committed in the state of Gujarat, the Gujarat government should have decided on the remission application. The decision further noted that the case was moved to Maharashtra because of “exceptional circumstances,” but only for the trial’s restricted duration, so the Gujarat government could review the prisoners’ requests for remission.
Thus, last year the state administration of Gujrat freed the convicts through the remission policy that was in effect at the time of their sentence (1992). It prompted several petitions to be filed before the highest court, contesting the Gujarati government’s decision to release the prisoners early.
In a writ petition, Bilkis Bano challenged the judge’s decision to release the 11 prisoners too soon to the Supreme Court. Ajay Rastogi and Vikram Nath, the bench of justices, denied her request for a review.[3]
SOURCES OF POWER TO GRANT REMISSION & COMMUTATION (statutes)?
Indian laws provide pardoning power sourcing from statuary and constitutional authorities.
- Constitutional provisions: By Articles 72[4] and 161[5] of the Constitution, the President and Governor respectively can grant pardon, suspend, remit, or commute a sentence passed by the courts.
- Code of Criminal Procedure: The CrPC 1973[6] provides for Suspension, remission, and commutation of sentences under Sections 432[7], 433, 433A, 434[8], and 435.
S.432(7): “Appropriate Government” means
- a) In cases where the sentence is for an offence against any law to which the executive power of the union extends;
- b) In other cases, the Government of the State within which the offender is sentenced or the said order is passed.[9]
- 433-A: Restriction on power of remission or commutation if the sentence is for life and the offence death is also a punishment provided by law, then such person shall not be released unless he had served 14 years of imprisonment.[10]
- 435: State Government to act after consultation with central government in certain cases.[11]
- Indian Penal Code, 1860: 54[12]& 55[13] of the IPC confer power on the appropriate government to commute the sentence of death or sentence of imprisonment for life as provided therein.
APPROPRIATE GOVERNMENT TO GRANT REMISSION
- Gujrat as the appropriate government for remission:
- Since the case was moved to Maharashtra only to facilitate the trial, the Gujarati government is the appropriate one in this instance. Following the conclusion of the trial and the prisoner’s conviction, the matter was transferred to the state where the crime was committed. The bench made up of Justices A. Rastogi and V. Nath gave the Gujarat government instructions in May 2022 to review his appeal for remission under the 1992 policy and underlined that Gujrat is the legitimate government.
- The “appropriate Government” would be the one where the instance took place & that the Supreme Court decided in the matters of State of Madhya Pradesh v. Ratan Singh[14], Hanumant Dass v. Vinay Kumar[15], and State of Andhra Pradesh v. M.T. Khan.[16]
- The Bombay High Court adds more support to the court’s rationale to conclude that Gujarat is the proper government. Under this ruling, the Bombay High Court determined that Gujarat would be the proper jail to decide whether to release the offenders early because the case was sent to be heard in Mumbai under peculiar circumstances and then returned to Gujarat.
- Section 435[17] of the Criminal Procedure Code (CrPC), which requires a state government to “consult” the Union government if the matter has been investigated by a central agency such as the Central Bureau of Investigation (CBI), has also been followed by the Gujarat administration. The Gujarat government had consulted the Union government, which then consulted the CBI. There was not a negative approach that had been expressed by the CBI, which left it to the Central government. Subsequently, the Union authorized the Gujarati government to commute the sentences.
- Additionally, the state government had complied with CrPC S.432(2), which required it to get a court opinion. Additionally, the district judge at Godhra, who was a member of the jail advisory group and gave his approval for the 11 convicts’ early release, felt that there was enough obedience.
- Section 432(2)[18] of the CrPC’s word “may” should be interpreted to allow judges who are knowledgeable about “ground reality” to express their opinions, arguing that the Gujarat judge—rather than the Maharashtra judge who had rendered a negative opinion—was more qualified to make the right determination. As a result, the necessity of obtaining legal counsel is also met.
- Maharashtra as the appropriate government:
- The state government in which the criminal was found guilty is defined as the “appropriate government” under Section 432(7)(b)[19] of the CrPC. Since the trial of the guilty in this case was moved from Gujarat to Maharashtra, Maharashtra would be the competent government. Section 55-A[20] of IPC also states that the ‘appropriate Government’ is the state government within which the offender was convicted
- According to Section 432(2) of the CrPC, if a request for remission is submitted to the relevant government, the government may ask the court’s presiding judge to express his or her view on whether the request should be approved or denied. The Gujarat government in this instance disregarded the ruling of the presiding judge, which found the defendants guilty. In Sriharan’s case, it was mandated.[21]
- It was held in Ram Chander v. State of Chhattisgarh[22] that the Presiding Judge’s view shall serve as the reference for the final judgment of suspension or remission.
- There was no indication from the petitioner that he was involved in the violence in Gujarat. He made the petition seem simple, almost like a remission. He objected to the court that his early release should have been following the 1992 policy rather than the 2014. Furthermore, Bilkis Bano had not been added to the case as an opponent.
ANALYSIS AND CONCLUSION:
In my opinion, the appropriate Government for the remission of the convicts in the present case is the Maharashtra government because the conviction took place within the jurisdiction of Maharashtra and not Gujrat. Even if we go through the statute, According to Section 432(7), Maharashtra will be deemed as an appropriate Government. On the other hand, the Gujrat government did not take all the necessary measures before remitting the sentence of the convicts. For instance, they did not take into consideration the opinion of the presiding judge who was not in favour of the conviction.
Was remitting the convicts a step ahead or set a dangerous precedent?
Given the horrific and demonic character of the crime committed in this instance, as well as the fact that it encompassed community devastation, the 11 men’s release does not adhere to the legal conditions established for that reason.
Furthermore, instances that the CBI had looked into are not eligible for remission under the 2014 remission policy, which is more updated than the 1992 policy.
The Supreme Court established criteria in the Laxman Naskar v UOI[23] case for determining whether a prisoner should be granted remission:
(i) whether the offence has a significant impact on society as a whole; (ii) the likelihood that the crime will be committed again; (iii) the possibility that the prisoner will commit crimes in the future; (iv) whether keeping the prisoner would serve any useful purpose; and (v) the socioeconomic status of the convict’s family.
Putting the above points into the facts of the cases, the release of the 11 convicts had set an extremely dangerous precedent. Firstly, the decision of the Gujarat Government is without any jurisdiction, and if even we assume that it was an appropriate authority, even then the discretion exercised by it, is highly improper, arbitrary, and capricious – more so when the presiding judge of the court which found them guilty gave an opinion against their release on remission.
Author(s) Name: Prerna Kumari (New Law College, Bharti Vidyapeeth Pune)
Reference(s):
[1] Awstika Das, ‘Gujarat Govt Says Convicts Deserve Chance of Reformation; Supreme Court Asks, Why Is Remission Policy Being Selectively Applied’ Live Law (17 Aug 2023 8:12 PM)
[2] Indian Penal Code, 1860
[3] Outlook Web Desk, ‘Bilkis Bano Gang-Rape Case: A Timeline of Events’ Outlook (Tuesday, Dec 12, 2023)
[4] Constitution of India, 1950, a 72
[5] Constitution of India, 1950, a 161
[6] Code of Criminal Procedure, 1973
[7] Code of Criminal Procedure, 1973, s 432
[8] Code of Criminal Procedure, 1973, s 434
[9] Code of Criminal Procedure, 1973, s 432(7)
[10] Code of Criminal Procedure, 1973, s 433 A
[11] Code of Criminal Procedure, 1973, s 435
[12] Indian Penal Code, 1860, s 54
[13] Indian Penal Code, 1860, s 55
[14]State of Madhya Pradesh v Ratan Singh & ORS [1976] 1976 AIR 1552
[15]Hanumant Dass v Vinay Kumar & ORS [1982] 1982 AIR 1052
[16]Government of Andhra Pradesh & ORS v M.T. Khan [2003], Cri 551-552 of 1997
[17] Code of Criminal Procedure, 1973, s 435
[18] Code of Criminal Procedure, 1973, s 432(2)
[19] Code of Criminal Procedure, 1973, s 432(7)
[20] Indian Penal Code, 1860, s 55A
[21] Code of Criminal Procedure, 1973, s 432(2)
[22]Ram Chander v The State of Chhattisgarh [2022] WP Cri 49 of 2022
[23]Laxman Naskar v Union of India & ORS [2000] WP Cri 110 of 2000
