Bilkis Bano and the fault in our criminal justice system

By Manish Tewari

The Supreme Court has issued a notice on a petition challenging the recent decision of the Gujarat government to remit the sentences of 11 rape and murder convicts. It has thrown into sharp relief certain important legal questions. What does life imprisonment mean? Is the power to remit sentences unfettered? Was the law followed in Bilkis Bano’s case by the remission board? Finally, how about the different standards followed by different state governments in the application of remission policies?
Meaning of life imprisonment: The question of what life imprisonment means was answered by the Supreme Court in Union of India vs. Sriharan (2016) 7 SCC 1. The court simply held that the punishment of life imprisonment means imprisonment for the rest of the convict’s life. The court relied on two previous Constitution Bench judgments, Re: Gopal Vinayak Godse and Maru Ram, in which it had emphatically held that life imprisonment is nothing less than life imprisonment and such a sentence lasts till the last breath. The correct legal position, therefore, is that life imprisonment means the entirety of life unless the appropriate government grants remission to the convict.
Remission under the Criminal Procedure Code: However, this grant of remission is not unfettered. The convict may request remission from the President or the governor under Articles 72 and 161 of the Constitution. This remission may also be granted under sections 432 of the Criminal Procedure Code. Under this framework, the appropriate government can commute, remit, or suspend sentences of a convicted person.
Bilkis Bano’s case: Even before delving into the many legal infirmities apparent in the remissions granted in the Bilkis Bano case there is an important question that must be asked, is it morally appropriate to remit a rape sentence? Rape and murder are heinous crimes; this brooks no disagreement. There has been an understanding in our society, particularly after the Nirbhaya case, that rape must be dealt with by a strong hand. Even the Centre’s recent remission policy for release of prisoners on Independence Day excluded rape convicts from its purview.
Why the remission in Bilkis Bano is incorrect: From a purely legal standpoint, the remissions stand on tenuous ground. First, there is the issue of consultation with the Central government before granting remission as the investigation was carried out by the CBI. It is unclear whether the state government carried out this consultation. If not, then the remission suffers from an apparent illegality as it runs counter to Section 435 of the CrPC. This consultation is important because cases investigated by the CBI cannot be left to the fancies of the Jail Advisory Committees on remission.
Second, did the apex court correctly interpret the law when it decided to give the power to consider the remission in this particular case back to the Gujarat government? On this issue, Section 432(7) (b) could not be clearer. It explicitly states that the appropriate government is the state where the offender is sentenced or the sentencing order is passed. The offenders in this case were sentenced in Maharashtra and the Maharashtra government ought to be the appropriate government. The Supreme Court, with great respect, seems to have reinterpreted the language of the statute and perhaps maybe even the intent of the legislature when it held that the appropriate government would be the state where the crime was committed.
It holds to reason that if a trial is transferred from State A to State B because there were apprehensions of bias in State A, should this logic not extend to the grant of remission as well? Would it be appropriate if the government accused of bias during the trial were given the power of remission post trial?
Third, Section 432 requires that the opinion of the judge who convicted the accused be taken into consideration before granting remission. Indeed, the Supreme Court has held that the government’s decision on remission should be guided by the opinion of the presiding officer. There is nothing on record to suggest the advisory board in Gujarat did this. The CBI judge who convicted the accused has come out and criticised the grant of remission.
Arbitrariness in the application of remission: The judicial system today is confronted with a spectre where some prisoners are languishing in jail interminably and yet others — who raped women and murdered children — are out. A case in point is of certain Sikh prisoners who continue to be in jail for more than 25 years. This despite consistent demands to release them on compassionate grounds. A country governed by the rule of law must — at a minimum — have some semblance of uniformity in its application of the law. The disparate ways in which remission policies are applied in different states is arbitrary and contrary to Article 14 of the Constitution. Remission policies should not be left to the vagaries of Jail Advisory Committees on remission.
Dissents in death penalty cases: There is another related but important issue that needs to be considered — dissents in death penalty cases. Should a person be put to death if the very people deciding on the question disagree fundamentally? The death penalty is the epitome of the state’s coercive power and it happens to be irreversible. Should the order decreeing the use of this power not be unanimous? What if the other, equally competent judge, turns out to be correct? Indeed, in his dissent in Glossip v. Gross, Justice Breyer of the United States Supreme Court noted that those sentenced to death are 130 times more likely to be exonerated than those convicted of non-capital offences.
In Bachan Singh’s case, the Supreme Court emphasised the need for scrupulous care in deciding death penalty cases. This argument could very well extend to imply that death penalty can be imposed only when there is not a shred of doubt regarding the quantum of sentence imposed. This issue came out starkly in Devinder Pal Singh Bhullar’s case in which the senior most judge in the three-judge bench, Justice M.B. Shah, had found Bhullar innocent and acquitted of any guilt.
At the cutting edge level, it is apparent that our criminal justice system seems to be shot through with wide discretion that is bound to lead to situations where some are let out of jail while others continue to serve without any possibility of parole or remission.
(The writer is former Union Minister for Information & Broadcasting and currently MP, Lok Sabha and a practising lawyer)