Remission is a basic tenet of modern criminal justice system

The backlash over Gujarat government’s decision to release the convicts in the Bilkis Bano rape and murder case takes us back to the basics: to understand and seriously consider the purpose of punishment. Rape is a heinous offence and the pain and agony that follows is unimaginable. There is no doubt about that. But can a modern criminal justice system condemn rape convicts to die in prison without any prospect of release?

Every state will have its own remission policy. Under the policy, the state government will have the power to remit the sentence of convicts and release them. Of course, conditions will apply. One basic condition, set out in the Code of Criminal Procedure (CrPC), is that the convict must have served at least 14 years of imprisonment.

In some situations, CrPC requires the state government to consult with the central government (section 435). One such situation is where the investigation (that ultimately resulted into the conviction) was conducted by the Central Bureau of Investigation. A Constitution-bench judgment of the Supreme Court states that “consultation” means “concurrence”. 

It is alleged that the state government sidestepped this mandate. What transpired between the state government and the central government is not known. It is not clear if the state government in fact reached out to the central government for its views. It is not clear if the central government agreed (or disagreed) with the state government’s decision. 

Importantly, the very same powers could have been exercised by the Governor without any consultation whatsoever with the central government (and without any restrictions set out in the CrPC). 

But can we let principles of reformative criminal justice get clouded by these technicalities? If the applicable 1992 remission policy permitted release of rape convicts, which it seems to do, then the policy must be honoured. Of course, not blindly so. The conditions that make the convict eligible for remission need to be carefully assessed and applied. The remission powers, even if discretionary, cannot be exercised arbitrarily and the decision-making process is subject to Article 14 principles of fairness and rule of law. 

Importantly, after the Nirbhaya incident in 2012, most remission policies do not allow release of rape convicts. Some states have made changes to this effect. The central government has also recommended the state governments to apply changes along these lines. However, these changes do not apply retrospectively. According to Supreme Court judgments, the remission policy that existed as on the date of conviction will need to be considered. 

Nothing of all that is to mean that the remission policies may be exercised robotically without any application of mind. A review panel has to examine the probability of the crime being repeated, if any fruitful purpose is being served by keeping the convict in prison, the socio-economic condition of the convict’s family, among other things. A sociological or psychiatric inquiry of the applicant-convict must be undertaken. I would have qualms with the release if remission orders lacked this inquiry or if the composition of the review panel itself is in question. I would also have qualms if the sentences were remitted on the basis of irrelevant considerations such as the religious or political identity of the applicant-convict. We need to fix these problems.

Finally, we need to address and alleviate concerns that the victim or members of her family may have. It appears from media reports that these include concerns for their safety. There may be a situation where a convict, after release upon remission, may repeat the crime, or commit a different crime. There are examples from the past. However, the answer lies somewhere else. These convicts could be put under surveillance for the rest of their lives. Other limitations or conditions should be attached to the release. Breach of the conditions should result into revocation of remission.

Rape is a heinous crime, no doubt, but the chance of getting caught and the certainty of punishment is a more effective deterrent than the severity of punishment, such as longer imprisonment or even capital punishment. Remission should always be about the offender, not the offence. A convict, no matter how heinous the crime, should have a prospect of release without which the whole idea of reformative justice becomes illusory. We cannot argue for the abolition of death penalty and yet be fine with prisoners dying in prison with no prospect of release.

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