BY NILISHA SARRAF, MANIKCHAND PAHADE LAW COLLEGE / Dr. BABASAHEB AMBEDKAR MARATHWADA UNIVERSITY
INTRODUCTION
On August 15, 2022, the Gujarat Government released eleven permanent convicts who were previously found guilty of gang rape and brutal killings that occurred during the 2002 communal riots in Gujarat from the Godhra sub-jail as part of the Gujarat government remission policy. Every aspect of society has betoken strong opposition to the government's action, with over 130 former civil workers penning an open letter to the Chief Justice of India (CJI) protesting the move and calling for its retraction. We will look into this matter in depth in this article.
WHAT IS REMISSION
In legal terms, Remission pertains reduction or elimination of penalties imposed on an individual. Remission is frequently given subject to stipulations, like good behavior during imprisonment, compliance with law enforcement, or proof of rehabilitation efforts. Usually, the judicial system decides whether to award remission after considering several variables and case-specific conditions. In remission, the nature of the sentence remains untouched, while the duration is reduced i.e., the rest of the sentence need not be undergone. The effect of the remission is that the prisoner is given a certain date on which he shall be released and in the eyes of the law he would be a free man.
BACKGROUND
According to the Prison Act of 1894, Section 3(5) defines the remission system. Remission is defined as shortening the jail sentence of prisoners. The remission system is a collection of guidelines developed at the moment of implementation that govern the marking of, and the ensuing reduction in jail inmates' sentences.
In Kehar Singh v. Union of India, AIR 1989 SC 653 it was noted that Courts cannot refuse a prisoner the opportunity to be evaluated for the remission of phrase. The prisoner would have to stay there till their final breath if they denied it. Breathe without even the slightest possibility of regaining freedom. This would not only violate the reformation's tenets but also force the prisoner into a hole in the dark with no light at all at the end of the tunnel.
Additionally, in the State of Haryana v. Mahender Singh, Appeal (crl.) 30 of 2005 case, the Supreme Court in 2007 that, although no prisoner has a basic right to remission, the State must employ this executive power to Consider all pertinent factors and evaluate each situation separately. Additionally, the Court found that a right to be taken into consideration for Remission needs to be deemed lawful. This is done by bearing in mind the protections provided by Articles 20 and 21 of the Constitution for convicted parties.
CONSTITUTIONAL PROVISION
The President may, according to Article 72, pardon, reprieve, respite, or remit punishment, as well as suspend, remit, or commute the sentence of any individual. Anybody found guilty of any crime may do this in all situations when: A court-martial will administer the punishment or sentence, in all situations where the penalty or the offense under any Union-related law is the basis for the sentencing. Executive authority of the government, as well as in all execution cases.
According to Article 161, a governor may give pardons, reprieves, respites, or penalty reductions, or the option to reduce, postpone, or remit the sentence. Anyone found guilty under any legislation on a subject falling under the executive branch of the government may do this. Under Article 72, the President's pardoning authority is extended more than the Governor's under Article 161.
STATUTORY REMISSION AUTHORITY
Remission of prison terms, which allows for the cancellation of all or part of the sentence, is permitted by The Code of Criminal Procedure, 1973, Section 435, which states that in some circumstances, the State Government shall take action only after consulting with the Central Government.
(1) The State Government can remit or commute a sentence under sections 432 and 433,
If the sentence pertains to an offense investigated by the Delhi Special Police establishment or other agencies.
It included stealing, damaging, or destroying any Central Government property.
An employee's actions committed by the Central Government during their official duties must be consulted before being used by the State Government.
(2) The State Government cannot suspend, remit, or commutate sentences for individuals convicted of offenses related to Union executive power unless the Central Government also orders the same for those committing similar offenses. This provision applies to bonds and bail. power to pardon has an overriding effect on Section 433A, which originally mandates that remittance of a prisoner's sentence can only be made after 14 years in jail.
Section 433 allows the relevant government to commute any sentence to a less severe one. State governments can use this authority to order the release of inmates prior to their release from custody.
Prisoners Eligible for Special Remission:
Male prisoners of 50 years or older, as well as women and transgender prisoners 60 years of age and beyond. Without taking into account the time of general remission they were granted, these prisoners had to have served half of their whole sentence.
prisoners who are physically incapable or incompetent, with a disability rate of at least 70% have served half of their entire sentence, Convicted terminally ill inmates who have served two-thirds (66%) of their whole sentence and After serving their entire sentence, impoverished or destitute inmates remain behind bars because they waived the fine that was levied upon them for not paying it.
People who committed a crime when they were young (18–21) and had no prior criminal activity or accusations made against them, and who have fulfilled half of their sentence duration would be qualified as well.
Prisoners Not Included in the Plan:
Those who have been found guilty and given the death penalty or in cases where sentenced to life in prison or someone found guilty of a crime for whose punishment has been mentioned as one of the penalties—the death penalty. Those found guilty face a life term in jail.
Those convicted under terrorism laws or those convicted of participating in terrorist activities Unlawful Activities (Prevention) Act of 1967, the Prevention of Terrorism Act of 2002, the Disruptive (Prevention) Act of 1985, National Explosives Act of 1908.
The Official Secrets Act of 1923, the Security Act of 1982, and the Anti-Hijacking Act of 2016, Those found guilty of dowry deaths, forging money notes, rape and human trafficking offenses, and offenses under the Protection of Children from Sexual Offenses (POCSO) Act, 2012, the Immoral Trafficking Act, 1956, the Prevention of Money Laundering Act, 2002, and any other law that the Union Territory administrations or State governments deem appropriate to exclude, as well as offenses against the State (Chapter VI of the IPC), would not be eligible for the special remission.
FACTS OF BILKIS BANO CASE
After the blaze which devastated the Sabarmati train in Godhra on February 27, 2002, emerged a period of increased unrest in Gujarat. Bilkis Bano with her family moved to the Chhaparvad district for the sake of seeking protection. Tragically, on March 3, 2002, a violent mob of twenty to thirty people with swords, sickles, and sticks in Ahmedabad attacked the family of 19-year-old Bilkis Bano, cruelly gang raped at that time she was five months pregnant, and even kill her seven family members.
TIMELINE
March 4, 2002: Bilkis was taken to Limkheda police station, FIR was registered but the fact that she was raped was not stated, accused was not named despite her identifying 12 of them
2002–2003: Despite all of her efforts, Bilkis's case was regularly turned down by the local police due to a lack of evidence. She eventually appealed to the Apex Court of India.
December 2003. Responding to her plea, the Supreme Court mandated the Central Bureau of Investigation (CBI) to undertake an inquiry into the matter.
August 2004: Bilkis voiced her concerns over possible evidence tampering and witness safety. As a result, the Ahmedabad trial had been shifted to Bombay by the High Court.
January 2008: Rape, conspiracy, and murder were among the several counts 12 people were found guilty of by the trial court.
December 2016: Eleven inmates who had received life sentences filed appeals, and the Bombay High Court postponed rulings on their cases.
May 15, 2022: A prisoner who had already served more than 15 years petitioned the Supreme Court for an early release. In response to his appeal, the Gujarat government was given instructions by the Supreme Court to look into the possibility of Shah's sentence being remitted. In response to this direction, the government formed a committee to deal with the problem, which Panchmahal Collector Sujal Mayatra chaired.
August 15, 2022: The eleven prisoners were released from the Godhra sub-jail as part of the Gujarat government's remission policy. A huge public outrage following the release of the 11 men led to the filing of numerous PILs with the Supreme Court.
September 2022: Bilkis Bano approached the Supreme Court in the writ petition challenging the premature release of 11 convicts.
December 2022: The Supreme Court denied Bano's review appeal, which contested the May 2022 ruling of the highest court, which ordered that one of the convicted individuals' remission be evaluated under the Gujarat government's 1992 remission policy.
March 2023: A bench of Justices KM Joseph and BV Nagarathna was assigned to hear the matter contesting the release of the eleven accused men. Regarding the petition Bilkis Bano filed, the Bench sent notice to the government of Gujarat, the Center, and eleven convicts.
October 2023: The top court reserved its verdict and asked the Centre and the Gujarat government to submit original records of files where the decision of remission was taken.
January 2024: Citing the Gujarat government's incompetence, the Supreme Court cancelled the High Court order that had allowed the early release of Bilkis Bano’s rapists and gave directions to surrender them within 2 weeks.
CONCLUSION
The government policy on the law of remission, especially in the context of the Bilkis Bano case, underscores the importance of justice, accountability, and the protection of victims' rights. Analyzing the specific measures and reforms within the remission framework is crucial for ensuring a fair and effective legal system. The Bilkis Bano case serves as a poignant reminder of the challenges and responsibilities involved in administering justice, prompting a reevaluation of government policies to better align with principles of fairness and human rights.
Simple Language explanation. Easy to understand