Bilkis Bano Case , New Delhi : In a significant judgment, the Supreme Court in the case Bilkis Yakub Rasool v. Union of India (“Bilkis Bano Case”) has set aside the Gujarat government’s order granting ‘communion’ to 11 persons who were convicted for rape. Was. On Bilkis Bano during the 2002 Gujarat riots. The Court held that the exercise of power by the State of Gujarat was an example of usurpation and abuse of power, noting that the State Government colluded with the convicts and violated the rule of law while condoning the life sentences of convicted persons. . of law by granting amnesty.
Today, the Supreme Court quashed the Gujarat government's decision to grant remissions to 11 convicts in the #BilkisBano case. Watch the Bilkis Bano case story: pic.twitter.com/y7zaAbPs49
— The Hindu (@the_hindu) January 8, 2024
Understanding the meaning of 'sentence remission'
‘Sentence remission’ generally refers to a remission or remission of sentence given to a person convicted of a crime. This involves reduction of the term of imprisonment or other punishment, taking into account various factors and considerations. The state can grant early release to criminals through remission policies, taking into account factors such as good conduct, rehabilitation, time served and health.
In case of remission of sentence, the crime of the offender is not affected, nor is the sentence of the court affected, except in the sense that the person concerned does not have to suffer imprisonment for the entire period of the sentence, but is relieved by serving the sentence . However, remission of sentence does not mean acquittal and the aggrieved party has every right to challenge the order of remission of sentence
Who has the power to grant pardon?
The Constitution grants the President and the Governor the sovereign power of pardon, commonly known as the mercy or clemency power. According to Article 72, the President has the power to pardon, remit, commute or commute the sentence of any person convicted of any offence, as well as to suspend, commute or commute the sentence. Is. This power extends to courts-martial, cases involving offenses under laws relating to the executive power of the Central Government and cases punishable with death.
Importantly, it clarifies that the President’s power does not impede the Governor’s ability to commute the death penalty. Whereas under Article 161, a Governor is authorized to grant pardon, remission, respite or remission of sentence.
Additionally, the Governor may suspend, pardon or commute the sentence of persons convicted under any law within the scope of the executive power of the State.
Apart from this, procedural law also confers the power of remission of sentence to the Central and State Governments. Section 473 (1) of the BNSS, which seeks to replace the existing code, empowers the ‘appropriate Government’ to suspend the execution of the sentence or to pardon the whole or part of the sentence awarded to a person. This power is available to state governments to order the release of prisoners before completing their prison sentence. However, section 473 (7) states that if a prisoner was sentenced in a case investigated by the CBI or any agency investigating offense under a Central Act, the State Government may, after consultation with the Central Government can authorize such release.
Further, it is worthwhile to mention that under the Constitution the effect of the pardon power of constitutional functionaries like the President and the Governor and the effect of the pardon power of the ‘appropriate Government’ are more or less the same because ultimately, the constitutional functionaries are bound while exercising such pardon power. Through the mechanism of ‘aid and advice’ of the ‘appropriate Government’. But, as per the decision of the Supreme Court in the case State (Government of NCT Delhi) vs. Prem Raj, the powers under Articles 72 and 161 of the Constitution of India are absolute and cannot be limited by any statutory provision, such as, Section Is. Section 432, 433 or 433-A of CrPC. Or by any jail rule.
The Supreme Court has held that the State has the undoubted discretion to condone or refuse to condone the punishment and no writ can be issued directing the State Government to release the petitioner because the procedural due process would have required the Government to complete the sentence. Or gives the right to waive any part of it. Punishment of punishment. However, the Court also stated that the State’s power of pardon cannot be exercised arbitrarily, and the decision to grant pardon must be informed, fair and reasonable, amenable to judicial review.
Definition of 'appropriate government'
Deciding on one of the issues, i.e., “Whether the State Government of Gujarat was competent to pass the impugned order of amnesty?”, the Supreme Court in the Bilkis Bano judgment explained the meaning of the term ‘appropriate government’.
The Court held that the intention of Parliament was that it was only the Government of the State within which the offender was sentenced that had the power to consider an application for remission of sentence and to pardon the sentence of a convict.
Is capable of passing orders. This means that the place of occurrence or the place of imprisonment of the convict is not a relevant consideration for the appropriate Government to decide whether to grant remission of sentence. According to the Court, the intention of Parliament is that the Government of the State in which the offender was tried and sentenced is the appropriate Government to consider an application for remission of sentence, and not the Government where the offense was committed or the convict was convicted. Are in captivity.
The Court held that the Government of Maharashtra is the appropriate Government to grant remission of sentence as the trial and sentence originated from the State of Maharashtra, therefore, the order of the Government of Gujarat granting remission of sentence to the convicts is invalid and against the rule of law.
Mandatory requirement of sufficient cause to be given by the presiding judge According to section 432 (2) of CrPC, the appropriate Government, while deciding an application for remission of sentence, may call for the opinion of the Presiding Judge of the Court before or by whom the conviction was made or confirmed, to state that Their opinion as to whether the application should be accepted or rejected. Further, the provision also states that any opinion given by the presiding judge must also be accompanied by the reasons for such opinion given by the presiding judge.
In the Bilkis Bano case, it was argued by the convicts that it is mandatory for the government to seek the opinion of the presiding judge in deciding the pardon application, however rejecting such argument, the court said that the expression “may “shall” under sub-section (2) of section 432 CrPC and shall be interpreted as a mandatory requirement. While the Presiding Judge should comply with the following while conveying his opinion to the appropriate Government on the application for remission of sentence made by a convict, it cannot be held that the expression “may” in the said provision is not mandatory nor should it be construed in that But can be left. The whims and wishes of the appropriate Government may or may not take into account the opinion of the presiding judge or the court before which the conviction took place.
Recently, emphasizing the importance of supplying adequate reason while deciding pardon, the Supreme Court recently set aside the impugned order/judgment of the High Court and directed the Special Judge to reconsider the convicts’ application , observing that an opinion given with inadequate reasoning would not satisfy the requirements of Section 432(2) of the CrPC. Moreover, it would not serve the purpose for which the function under section 432(2) is to be served, which is to enable the executive to take an informed decision taking into account all relevant factors.
Factors to be considered while granting remission of sentence
In an important judgment of Laxman Naskar v. State of West Bengal, the Court had discussed the factors to be considered before granting remission of sentence, such as:-
- Whether the crime is an individual act of crime without affecting the society at large
- Is there any possibility of recurrence of the offense in future
- whether the accused has lost his capacity to commit the crime
- Is there any meaningful purpose in keeping the convict in prison any longer
- Socio-economic status of the convict’s family
Furthermore, the court in Bilkis Bano has set out the following along with other tests which may apply in considering an application for remission of sentence, namely:-
- This order has been passed without applying any mind
- This order is malicious
- That the order has been passed on irrelevant or completely irrelevant considerations
- Relevant materials have been excluded from consideration
- This order suffers from arbitrariness
Recent decision to release the convict on punishment
Last year, the Supreme Court had expressed its displeasure over the regular non-compliance by the state of Uttar Pradesh with its September 2022 judgment, which had, inter alia, directed to consider remission of sentence after the prisoners become eligible .