The laws around remission policy

GS Paper II

News Excerpt:

The Supreme Court (SC) has revoked the remission of 11 convicts sentenced to life imprisonment for gang rape and murder during the 2002 communal riots in Gujarat.

  • The Gujarat government passed the remission order in 2022.

About:

Pardoning Powers:

  • Article 72 and 161 of the Constitution provide powers to the President and Governor, respectively, to grant -
    • Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
    • Commutation: It denotes the substitution of one form of punishment for a lighter form.
      For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.
    • Remission: It implies reducing the period of sentence without changing its character.
      For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
    • Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
    • Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation.
  • These are sovereign powers vested in the heads of the Union and State executive to be exercised on the advice of the Council of Ministers.
  • Criminal Procedure Code (CrPC), 1973
    • The appropriate State Government, under Section 432 of CrPC, may remit the whole or part of the punishment to which a convict has been sentenced.
    • In the case of life imprisonment convicts, this remission can be done only after a period of 14 years in jail as per Section 433A of the CrPC.

Background to the remission in this case:

  • The crimes for which the 11 persons were convicted were committed in Gujarat in 2002.
    • However, considering the need for a fair trial, these cases were shifted to Maharashtra by the SC.
  • A CBI trial court in Mumbai sentenced the convicts to life imprisonment in 2008.
  • One of the convicts moved to the SC in 2022 seeking directions to the Gujarat government to consider his remission application under the State’s “Remission policy” of 1992.
    • The argument was that this was the policy in force at the time of the commission of offence (2002) and at the time of sentencing (2008).
  • In 2022, the SC directed the Gujarat government to consider the convict's application for premature release under the 1992 policy.
  • The Godhra Jail Advisory Committee (JAC) headed by the District Magistrate unanimously recommended the remission of sentence for the 11 convicts.

The 1992 Remission Policy vs the 2014 Remission Policy:

Issues involved: The Gujarat government's premature release of the 11 convicts raised serious legal and moral questions.

  • Criminal Procedure Code (CrPC):
    • It stipulates that the State Government for considering remission applications should be Maharashtra, where the sentencing occurred, not Gujarat, where the offence occurred or jail term was served.
    • It also requires the presiding judge's opinion to be obtained before considering the remission petition, which was not followed in this case.
  • Laxman Naskar vs Union of India (2000):
    • The SC had laid down five grounds on which remission is to be considered.
      • Whether the offence is an individual act of crime without affecting society at large.
      • Whether there is any chance of future recurrence of committing a crime;
      • Whether the convict has lost his potential to commit a crime;
      • Whether there is any fruitful purpose of confining the convict any more;
      • Socio-economic condition of the convict’s family.
    • While accepting their remission, the first condition was neglected as it would be preposterous to surmise that such a heinous crime does not impact the conscience of a civilized society.
  • Sangeet vs the State of Haryana (2012):
    • The SC held that a convict serving life imprisonment has no right to be prematurely released after 14 years in jail and that remission should be considered only on a case-by-case basis.
      • The Union Home Ministry issued an advisory in 2013 prescribing that remission should not be granted in a “wholesale manner”.
      • The Gujarat government had revised its “Remission policy” in 2014 in line with this advisory and had explicitly barred remission for those convicted of rape and murder.
    • However, the instant remission was granted based on the policy of 1992 (that had no such exclusions) as it was in force at the time of conviction.
  • There’s another roadblock to objectivity and consistency in remission policy. Since remission is a state subject, policies may not be on the same footing.
    • Remission policy differs from state to state, and there is little transparency on how these decisions are made.

Ruling of the Supreme Court:

  • The SC held that the Gujarat government is not the appropriate government to consider the remission petition.
    • It held that the 2022 order of the SC, which asked the Gujarat government to consider the remission petitions, was obtained through fraud and suppression of facts before the court.
    • Hence, it held the 2022 order of the SC to be a nullity.
  • It further ordered the surrender of all 11 persons before jail authorities within two weeks.
  • It held that the appropriate government for considering the remission petitions in the instant case is Maharashtra, and it may consider their petitions in accordance with the law and the guidelines laid down by the Court.

Conclusion:

This order has reinforced the faith in the judicial system and the “rule of law” by setting aside a blatantly perverse order that shook the conscience of society at large and women in particular. It is expected that the Maharashtra Government would follow the guidelines laid down by the SC in the Laxman Naskar case, under which such crimes that affect society deserve no mercy.

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