What are the laws surrounding remission policy?

On January 8, the remission of 11 individuals convicted to life imprisonment for Bilkis Bano's gang rape and her family's murder at the time of the 2002 Gujrat communal riots was set aside by the apex court of the country. It was in 2022 that the remission order was passed by the government of Gujarat. 

The remission powers in India

The President and the Governor are provided with powers to grant commutation, pardon, respite, remission, or reprieve to a convict, as per Articles 72 and 161 respectively of the Constitution. These powers are sovereign vested in the Union and State executive. These powers are to be used on the advice of the Council of Ministers.
Additionally, under Section 432 of the Criminal Procedure Code of 1973, the State government may remit a part of or the whole punishment sentenced to a convict. It is important to note that it is only after a period of 14 years of imprisonment that this remission can be executed as per Section 433A of the Criminal Procedure Code. 

The case 

A total of 11 individuals were convicted for a set of heinous crimes committed in March 2002 in Gujarat. These cases were however shifted by the Supreme Court to Maharashtra in 2004, due to the requirement of a free trial. The convicts were sentenced to life imprisonment in the year 2008 by a CBI trial court in Mumbai. 

Radhshyam Shah, one of the convicts, moved to the apex court in the year 2022 to seek directions from the government of Gujarat to acknowledge his remission application as per the Remission policy of the State of 1992. 

The convict argued that the policy was actually in force during the offense commission in 2002 and also during the sentencing in 2008. In May 2022, the Supreme Court issued an order directing the government of Gujarat to consider the application of Radheshyam Shah for premature release as per the policy of 1992. Consecutively, in August 2022, the 11 convicts were freed after the recommendation of remission by the District Magistrate headed by the Godhra Jail Advisory Committee (JAC). 

What after the release?

The 11 convicts were provided premature release by the government of Gujarat and this resulted in multiple frowns on the decision. 

There are many moral and legal questions raised on the decision.
First things first, it is the appropriate State government that considers the remission application as per the provisions of the CrPC. In this case, many wonder if the remission application should have been considered by the Maharashtra government and not the Gujarat government. Many argue that Gujarat is merely the place where the offense took place, but Maharashtra was the state where the sentencing happened.
Additionally, the viewpoint of the presiding judge of the convicting court is obtained before considering the application of remission as per the law. However, this step was absent in this case. 

Grounds of remission

The Supreme Court has clearly led to the five grounds on which the remission is considered, in the case of Laxman Naskae v. Union of India (2000). One of these grounds was: 

- Whether the offense involved is actually an individual act of crime that does not impact society. 

The case at hand involves gang rape and murder, and such heinous crimes clearly adversely affect the society. 

Additionally, the case of Sangeet v. State of Haryana (2012) led the Supreme Court to hold that a convict who is serving life imprisonment is not entitled to premature release after the completion of 14 years of imprisonment. The Supreme Court also held that the remission should be held on a case-by-case basis. 

Therefore, an advisory had been issued by the Union Home Ministry in 2013 stating that providing remission in a "wholesale manner" should not be the case. 

The Remission policy of Gujarat was revised by the Gujarat government in the year 2014 in accordance with the advisory. The revision barred the remission of convicts convicted for the offense of murder and rape. 

Yet, in this case, instant remission was granted as per the 1992 policy.

Ruling of the Supreme Court 

In its order, the apex court held that the appropriate government to consider the remission application in this case is not the Gujarat government. The Supreme Court also held that the order of the Supreme Court in May 2022 asking the government of Gujarat to consider the remission application was actually obtained via suppression of facts before the apex court. Therefore, the order of the Supreme Court of May 2022 is held null. The Court held that the right government for considering remission in the present case is the Maharashtra government.
Additionally, the Supreme Court ordered the 11 convicts to surrender before the jail authorities in a time frame of two weeks. 

The ruling of the Supreme Court has restored the rule of law and strengthened the faith in justice in India.