“Remission Policy – Question of the Victims” Study Materials for MPSC, UPSC an Other Exams
Policy of Remission
The Remission system has been defined under the Prison Act, of 1894 to be a set of rules formulated for the time being in force regulating the award of marks to, and the consequent shortening of sentence of, prisoners to completely end it. It is an important aspect of the reformation and retribution principle of the criminal justice system that modern liberal democracies like India have long thrived for.
The concept of remission is different from both parole and furlough as it is just the reduction in sentence. While in remission the nature of the sentence is the same only the duration of the sentence is reduced. The prisoner is released on a certain date in the eyes of the law with some definitive conditions. However, in case of a breach of any conditions, the remissions granted to the victims get canceled.
In the landmark case of Kehar Singh v. Union of India the hon’ble Apex Court of India clearly stated that courts cannot deny to a prisoner the benefit to be considered for the remission of sentence.
By denying this, the courts deny the prisoners the last ray of hope to be set free again . this completely opposes the principles of reformation and pushes the convict into a deep dark tunnel which certainly does not have a semblance of light on the other hand.
Over the past few months, India has witnessed a huge politico-legal uproar over the decision of the Gujarat Government to release 11 convicts who were held guilty by the Court of Law for the heinous Gang-Rape of Bilkis Bano. The cruel act was committed during the horrendous Gujarat Riots of 2002. The media has rightly been critical of the decision, however, what must be looked upon is the provision and policy by virtue of which the government exercises such discretionary power and its scope.
Sources of Legitimacy
The Government exercises its power to grant various remedies like that as remission by the virtue of several Constitutional and Statutory provisions. The Indian Constitution in Article 72 provides the Pardoning power to the President of India. The first clause of the said article motions pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense. The Governors of the state enjoy such pardoning power under Article 161 of the Constitution. However, the powers of the governor in this regard are not as extensive as the President and are limited to the matters to which the executive powers of the State government extend.
The criminal law system of India also specifically has a detailed provision for remission. The Criminal Procedure Code, under section 432 provides for the power to suspend or remit sentences, such power is bestowed upon any “appropriate government” and could be exercised at any time with or without conditions. The phrase ‘appropriate government’ has been considered to be either the Central or the State Government. (Union of India v. V Sriharan)
The power regarding remission has been subjected to various policy guidelines and judicial pronouncements.
The Case of Bilkis Bano
The Government of Gujarat prematurely released the 11 convicts, imprisoned by the Special CBI court in Mumbai in January 2008. The government while releasing the convicts followed the remission policy that was released in 1991 despite a newer and stricter version of the Policy being in place since 2014. The major and crucial difference between the two policies is that the policy which was in effect from 1992 in Gujarat, did not expressly mention any eligibility criteria to be followed. The policy did not distinguish between different prisoners. Unlike the policy of 1992, Gujarat’s Government’s latest policy on remission which is in force since 2014, places various eligibility criteria before the government for considering remission for the prisoner. One such classification is mentioned in Annexure 1 of the 2014 notification. The clause reads that no prisoner who has been investigated under the Delhi Special Police Establishment under the DSPE Act 1946, shall be eligible for a premature release under this policy. It is a fact that the case was probed by the Central Bureau of Investigation in the year 2004 where a charge sheet was filed by the CBI. Thus it is very much evident that had the Gujarat Government followed the Policy of 2014, the convicts would not have been eligible. The other major distinction was that the convicts for rape and murder were kept out of the scope of remission. This too was bypassed by the Government by following the 1992 notification which renders no such express classifications.
The government of Gujarat has said that the release was based on the 1992 policy because this very policy was in place when the convicts were held guilty and sentenced by the Special CBI Court in 2008. However, this does not explain the reason these convicts were considered for premature release. The government on various platforms has cited the “good behavior” of the convicts in jail as the reason though the facts speak the contrary. In reply to a petition filed in the Supreme Court against the order, the Gujarat government’s annexure reveals that one of the accused namely Mitesh Bhatt was charge-sheeted for outraging a woman’s modesty in June 2020.
Missing Voice of the Victims
As mentioned and discussed above the decision of the government of Gujarat is under strict public scrutiny for releasing the 14 convicts prematurely that too by following the rules and guidelines of a much older and outdated notification. Despite this unjustifiable and haphazard decision of the government being criticized and questioned in and out of the legal arena, one thing which has not been given much importance is the role of the actual aggrieved.
Bilkis Bano in a media statement had reportedly said that this decision has shaken her faith in the Justice System and the release of the 14 convicts was ‘unjust’.
The victims do not have any say in the release of the perpetrators and their voice does not matter in any such decision being taken. In crimes like Rape, not only a person suffers the pain and harassment on their body but the trace of that sorrowful encounter troubles the victim at a psychological level. It must be looked at while releasing any convict of such heinous acts, what repercussions it would have on the victim. The trauma which the victims of such acts went through would come haunting in front of them.
According to the Jail Advisory Board in India, there seems to be no uniform legal compulsion to hear the victim’s viewpoint under the rules related to remission according to sections 432, 433, and 433A of the Code of Criminal Procedure. It can be rightly stated that denying victims the opportunity of representation while determining the issuance of remission undermines the right of victims to participate. The State must not exercise such a discretionary power which may reinstate the mental condition of the victim, similar to that they face when attacked. In crimes like rape etc a person is victimized for their whole life. It takes years for them to lead a normal life in a society where instead of the perpetrators, questions are raised about the character of the victims. The state therefore can not take an arbitrary decision upon the release of the prisoners without taking the victims or their family members into confidence. Releasing the perpetrators without even hearing the opinion of the person violated, the state adds to the trauma that the victims have been going through. Therefore it must be made sure that the premature release of the convicts is done with consultation of the victim, and thus justice would be served in its real sense.
International law’s point of view on the Bilkis Bano case
There is no provision in international criminal law for remission as an executive discretion. There is a provision for review after the ICC has convicted and sentenced the person (including for reduction of sentence).
Under Rule 223 of the Rules of Procedure and Evidence it is rightly stated that the power lies with three judges of the Appeal Chamber to review if the sentence given to the accused be reduced, based on a set of rules stating that :
(a) The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime;
(b) The prospect of the resocialization and successful resettlement of the sentenced person;
(c) Whether the early release of the sentenced person would give rise to significant social instability;
(d) Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release;
(e) Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age. [Emphasis added]
It can be interpreted from the ICC statutes that the power of reduction of the sentence lies with the executive and is not a judicial mandate.
According to the Jail Advisory Board in India, there seems to be no uniform legal compulsion to hear the victim’s viewpoint under the rules related to remission according to sections 432, 433, and 433A of the Code of Criminal Procedure.
It can be rightly stated that denying victims the opportunity of representation while determining the issuance of remission undermines the right of victims to participate.
The premature release of all the eleven convicts in the Bilkis Bano case, while not taking into consideration the opinion of the trial judge, without providing Bilkis with an opportunity to express her concerns about the remission, and through an ambiguous and arbitrary exercise of executive power, this does not fall under the ambit of international legal standards.
In the end, it can be concluded that the right to remission is not absolute. It should be done on an individual basis. In this case, the committee’s misinterpretation of the law was caused by the way the law was defined. Survivors of rape and sexual violence already face challenges as they navigate the legal system. What kind of precedent is set if these 11 men are released? The laws must be rightly revised to provide justice to victims and the mental and physical agony faced by them.
The laws must be framed keeping in mind the rights and voices of the victims to provide them justice in a proper manner and not disappoint them. The victims need to present their views. However, denying them the opportunity to present their viewpoints while determining remission undermines victims’ right to participate.
- Union of India v. V Sriharan, (2016)
- New Norms for Sentence Remission (drishtiias.com)
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