On January 8, in a much-awaited decision, the Supreme Court (SC) of India quashed the grant of remission to the 11 men who had been convicted of gangraping Bilkis Bano during the 2002 Gujarat riots and murdering seven of her family members. In August 2022, while these men were serving sentences of life imprisonment, the government of Gujarat passed an order remitting their sentence, setting them free. Bilkis Bano, along with a number of other public interest petitioners, challenged this order before the SC, and it was this challenge that resulted in the judgment of January 8.
In the criminal justice system, a “remission” is granted to convicts who have spent a significant amount of time in prison. Remission follows the principle that the reformative, rehabilitative, and even deterrent goals of the criminal justice system are not served by keeping an individual in jail for the entire duration of their natural life.
The government is thus granted the discretion to remit sentences and reintegrate a convicted individual back into society. While remission is meant to be guided by principled considerations — balancing the social consensus around just punishment for heinous crimes with the more humane aspects of criminal administration — granting such power to the executive brings with it the possibility of politically motivated or partisan misuse. This is especially true when the crime itself is inescapably political — an assassination, for example, or violence committed during communal riots. Cases in which the convicts enjoy widespread social support, thus, are ripe for political exploitation by the State, through the grant of remission.
To prevent such political abuse, the law prescribes certain safeguards and procedural requirements, which must be fulfilled for remission to be granted. And crucially, it is the Court that must oversee that these conditions are strictly fulfilled, and — when required — intervene even in cases where remission enjoys political and social support.
The SC’s judgment in the Bilkis Bano case is important from this perspective. After engaging in a detailed analysis, the Court — writing through justices BV Nagarathna and Ujjal Bhuyan — quashed the Gujarat government’s remission order on three broad grounds, each of which had to do with the violation of procedural safeguards.
First, the SC held that under the Code of Criminal Procedure, only the appropriate government — i.e., the government of the state where the convicts had been tried and sentenced — was competent to grant remission. In this case, as the trial had been shifted out from Gujarat — due to concerns of fairness — to Maharashtra, it was the government of Maharashtra that was the “appropriate government”. The Gujarat government, therefore, had no jurisdiction to pass the remission order.
Second, the Court noted that the government of Gujarat had purported to act in pursuance of a 2022 order by the SC, which had held that Gujarat state was the “appropriate government”. However, not only had this order been obtained on the basis of fraud and suppressed evidence (apart from the fact that the 1992 remission policy that was sought to be applied had itself been cancelled), but also the government of Gujarat had itself argued in the proceedings that it was not the appropriate government. However, once the 2022 order came out, the Gujarat government moved immediately to grant remission, instead of filing a review petition challenging the correctness of the order. The Court held that this amounted to the Gujarat government “usurping” a power that never belonged to it and that its remission order was entirely vitiated.
And third, one of the essential safeguards for remission is the requirement of an opinion by the presiding judge of the court responsible for convicting and sentencing the guilty individuals. While the government may refer the matter back to the presiding judge if their original opinion is cryptic or unreasoned, it cannot substitute its own determination for that of the judge. This safeguard is vital, because it is, after all, the presiding judge who has been most intimately acquainted both with the trial and with the accused. Indeed, in this case, the presiding judge (in Maharashtra) had issued an opinion rejecting remission; however, when subsequently the Gujarat government assumed to itself the power to grant remission, it proceeded to ignore that opinion. This, the Court found, was another reason that the remission order was illegal.
In quashing the remission order, the Court reaffirmed the importance of the rule of law over political expediency in such matters, and the crucial role of the SC in maintaining public confidence in the administration of the rule of law by the judiciary. It noted that on the evidence before it, the state of Gujarat had acted in complicity and in tandem with the convicted individuals, rather than following the principles for remission. The SC reiterated those substantive principles as well (from the nature of the crime to the possibility of reform), and stressed that remission orders that were delivered en masse, or without reasons, would be struck down by the courts.
However, it is equally important what the Court did not say. Often, in cases involving particularly gruesome crimes, courts act out of a desire to see the accused punished despite the law, instead of in accordance with it. In this case, for instance, it would have been easy for the SC to issue blanket statements ruling out remission for gruesome crimes. While that would have satiated the demand for justice in this case, it would also have been weaponised by governments going forward, to deny remission where it would be politically popular to do so. Wisely, then, the Court resisted the temptation to issue a sweeping moral condemnation or to undermine the law on remission itself. And in doing so, it demonstrated a truth that the courts have been too easy to forget of late: That justice is often best served through fidelity to the rule of law, and that — in turn — means taking the law seriously.
Gautam Bhatia is a Delhi-based advocate. The views expressed are personal
In Bilkis Bano order, the rule of law is upheld
4
0
09.01.2024
On January 8, in a much-awaited decision, the Supreme Court (SC) of India quashed the grant of remission to the 11 men who had been convicted of gangraping Bilkis Bano during the 2002 Gujarat riots and murdering seven of her family members. In August 2022, while these men were serving sentences of life imprisonment, the government of Gujarat passed an order remitting their sentence, setting them free. Bilkis Bano, along with a number of other public interest petitioners, challenged this order before the SC, and it was this challenge that resulted in the judgment of January 8.
In the criminal justice system, a “remission” is granted to convicts who have spent a significant amount of time in prison. Remission follows the principle that the reformative, rehabilitative, and even deterrent goals of the criminal justice system are not served by keeping an individual in jail for the entire duration of their natural life.
The government is thus granted the discretion to remit sentences and reintegrate a convicted individual back into society. While remission is meant to be guided by principled considerations — balancing the social consensus around just punishment for heinous crimes with the more humane aspects of criminal administration — granting such power to the executive brings with it the possibility of politically motivated or partisan misuse. This is especially true when the crime itself is inescapably political — an assassination, for example, or violence committed during communal riots. Cases in which the convicts enjoy........
© hindustantimes
visit website
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Andrew Mitrovica
Mort Laitner
Rami G Khouri
Ali Fathollah-Nejad
Nikkei Editorial
