Relevance: GS-2: Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions, and basic structure.

Key Phrases: Bilkis Bano, Special Central Bureau of Investigation Court, life imprisonment, Articles 72 and 161 of the Constitution, Section 432, Section 433A of the CrPC, Laxman Naskar v. Union of India, Gujarat’s remission policy.

Why in News?

• Eleven men who were sentenced to life imprisonment in 2008 for the gang rape of Bilkis Bano (she was pregnant then) and the murder of her family members in 2002 was released from jail in Gujarat.
• A Special Central Bureau of Investigation Court sentenced the men to life imprisonment in 2008.

The Law on Remissions:

• Under Articles 72 and 161 of the Constitution, the President and Governors have the power to pardon, suspend, remit, or commute a sentence passed by the courts.
• Since prisons are a state subject, state governments have powers under Section 432 of the Code of Criminal Procedure (CrPC) to remit sentences.
• However, Section 433A of the CrPC puts certain restrictions on these powers of remission: “Where a sentence of imprisonment for life is imposed on conviction of a person for an offense for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.”
• Prisoners are often released on the birth and death anniversaries of prominent leaders and other important occasions.

Grounds for remission:

• States set up a Sentence Review Board to exercise the powers under Section 432 of the CrPC.
• The Supreme Court has held that states cannot exercise the power of remission arbitrarily, and must follow due process.
• While the policy varies from state to state, broadly the grounds for remission considered by the Board are the same.
• Seriousness of the crime, the status of the co-accused, and conduct in jail are the factors considered for granting remission.
• In ‘Laxman Naskar v. Union of India’ (2000) the SC laid down five grounds on which remission is considered:
  1. Whether the offense is an individual act of crime that does not affect society;
  2. Whether there is a chance of the crime being repeated in the future;
  3. Whether the convict has lost the potential to commit a crime;
  4. Whether any purpose is being served in keeping the convict in prison; and
  5. Socio-economic conditions of the convict’s family.
• Jail manuals contain rules that allow certain days of remission every month for the good behaviour of convicts.
• For those serving fixed sentences, the remission days are accounted for while releasing the convict.
• However, convicts serving life sentences are entitled to seek remission only after serving a minimum of 14 years.
• This rule has often led to uncertainty on whether a “life sentence” means 14 years or a sentence unto death, prompting courts in recent times to clarify that “life means the remainder of one’s life”.
• Data from Prison Statistics, 2020 show that 61% of convicts in jail are serving life sentences.

Gujarat’s remission policy

• The remission policy that was notified in 1992 — and which was in force at the time of the crime and conviction — permitted prisoners to apply for remission “on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment”.
• This “premature release/remission resolution” applied to prisoners whose life sentences were pronounced on December 12, 1978, or later, and who had completed a minimum of 14 years in prison.
• Importantly, the 1992 resolution did not list any exceptions concerning the offenses for which the prisoners had been sentenced to life imprisonment.

Invalidation of 1992 policy:

• The policy of 1992 was invalidated by the SC in November 2012.
• The court said: “Before exercising the power of remission under Section 432 of the CrPC the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remission can, therefore, be given only on a case-by-case basis and not in a wholesale manner.”
• Following the SC order and instructions issued subsequently by the Union Home Ministry to all states and Union Territories, the Gujarat government formulated a fresh policy in 2014.
• This contained an annexure listing cases where remission could not be granted — among them were those in which the prisoners were convicted for a crime that was investigated by an agency under the Delhi Special Police Establishment Act (CBI, which was the investigating agency in the Bilkis case), and prisoners convicted for murder with rape or gangrape.

Applicability to Bilkis case

• The 1992 policy, under which the convict (Shah) had sought remission, did not have the restrictions that were prescribed in the 2014 policy.
• The order of the CBI court passed in 2008 did not bar the convicts from applying for remission.
• One of the convicts had moved the SC to seek remission as per the 1992 policy of the state government, which did not have the annexure excluding certain categories of convicts from applying for remission - rather than the 2014 resolution that is currently in place — as the order was delivered in 2008.

Source: The Hindu, Indian Express

Mains Question:

Q. Premature release of prisoners must be done with discretion and wisdom. Discuss in light of remission of sentences of convicts in Bilkis Bano case.

Q. What is the law on remission of sentences of convicts? How did Gujarat's 1992 remissions policy become applicable in Bilkis Bano case even though changes had been made in 2014?