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Releasing Convicts on Grounds of Remission

Context

  • Public-spirited activists are challenging the premature release of 11 convicts serving life sentences for the gang-rape of a woman and the murder of at least seven people during Gujarat’s anti-Muslim pogrom in 2002.
  • The survivor, Bilkis Bano, has not yet approached the courts, but it is clear that the Gujarat government’s order granting remission to the convicts should be subject to judicial review.
  • People are raising questions that why those found guilty of multiple murders, including the murder of a three-year-old child, and gang rapes were considered suitable candidates for early release.

Relevance

GS Paper 3: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure

Mains Question

Compare and contrast the pardoning powers of India’s president and governor as outlined in the constitution. (250 words)


The Transferred Jurisdiction

  • The remission was granted by a two-judge bench of the Supreme Court in response to a petition filed by one of the convicts.
  • The question was whether the Gujarat government or the Maharashtra government should consider their remission request.
  • The Court ruled that the matter should be considered by the State government of Gujarat, where the crime occurred, rather than Maharashtra, the State to which the Supreme Court transferred the trial to ensure an impartial trial.

The Problem with Remission

  • While issuing this order, the Bench also stated that the remission should be considered in accordance with a policy established in July 1992, as that was the policy in effect at the time of their 2008 conviction.
  • This meant that the current policy’s prohibition on granting remission to those convicted of murder and rape would not apply to these convicts.
  • The remission order appears to be illegal on at least two grounds. First, the state government made a decision without consulting the federal government. In cases investigated by the CBI, such consultation with the Centre is required under Section 435 of the Code of Criminal Procedure. Furthermore, the committee that recommended remission for the convicts was made up of two BJP legislators.
  • A remission panel should ideally include senior government officials in charge of home or law, a district judge, the prison superintendent, and officers who deal with probation and offender rehabilitation.

Other Concerns

  • The presence of political members undoubtedly taints its decision. Furthermore, it appears that the district judge’s objection was ignored, casting doubt on the legitimacy of the remission.
  • It will be appropriate if the Supreme Court forms a large enough bench to reconsider judgments that allow the remission policy in effect on the date of conviction, rather than the current policy; and to decide whether the ‘appropriate government’ should be the one in the state where the crime occurred, or the one in which the trial was transferred on judicial orders
  • It can also outline the contours of a rational remission policy, one informed by humanitarian considerations as well as the offenders’ capacity for reform and sense of remorse.

Pardoning Power

  1. President: According to Article 72 of the Constitution, the President has the authority to grant pardons, reprieves, respites, or remissions of punishment, as well as to suspend, remit, or commute the sentence of any person convicted of any offence where the sentence is death.
  2. Limitation: The President’s pardon power cannot be exercised independently of the government. In several cases, the Supreme Court has ruled that when deciding on mercy petitions, the President must follow the advice of the Council of Ministers. Maru Ram vs. Union of India in 1980 and Dhananjoy Chatterjee vs. State of West Bengal in 1994 are two examples.
  3. Procedure: Rashtrapati Bhawan forwards the mercy request to the Home Ministry, which seeks advice from the Cabinet. In turn, the Ministry forwards this to the relevant state government, and based on the response, it formulates its advice on behalf of the Council of Ministers.
  4. Although the President is bound by the Cabinet’s advice, Article 74 (1) allows him to return it for reconsideration only once. If the Council of Ministers rejects any change, the President is forced to accept it.
  5. Governor: According to Article 161, the Governor of India has pardoning powers as well.

Key Terms

  • Pardon: It absolves the convict of all sentences, punishments, and disqualifications by removing both the sentence and the conviction.
  • Commutation: The substitution of one form of punishment for a less severe form. A death sentence, for example, may be commuted to rigorous imprisonment, which may then be commuted to simple imprisonment.
  • Remission: It refers to reducing the length of a sentence without changing its nature. A sentence of rigorous imprisonment for two years, for example, may be reduced to rigorous imprisonment for one year.
  • Respite: It refers to the imposition of a lesser sentence in place of one that was originally imposed due to a unique circumstance, such as a convict’s physical disability or a woman offender’s pregnancy.
  • Reprieve: It denotes a temporary stay of execution of a sentence (especially one of death). Its purpose is to give the convict enough time to petition the President for a pardon or commutation.

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October 2022
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