Bilkis Bano and the flaw in our criminal justice system

By Manish Tewari

The Supreme Court has issued an opinion on a petition challenging the Gujarat government’s recent decision to remit the sentences of 11 rape and murder convicts. She highlighted some important legal issues. What does life imprisonment mean? Is the power to remit unlimited? Was the law followed in the case of Bilkis Bano by the sentencing commission? Finally, what about the different standards followed by different state governments in enforcing discount policies?
Meaning of life imprisonment: The question of what life imprisonment means was answered by the Supreme Court in Union of India v. Sriharan (2016) 7 SCC 1. The court simply ruled that the sentence of life imprisonment means imprisonment for the rest of life. The court relied on two previous judgments of the Constitutional Court, Re: Gopal Vinayak Godse and Maru Ram, in which it had emphatically stated that life imprisonment was nothing less than life imprisonment and that such pain lasts until the last breath. The correct legal position, therefore, is that life imprisonment means the whole of life unless the appropriate government grants a remission to the convict.
Remission under the Code of Criminal Procedure: However, this remission is not without hindrance. The convict may request the surrender of the President or the Governor under Articles 72 and 161 of the Constitution. This remission may also be granted under articles 432 of the Code of Criminal Procedure. Within this framework, the competent government may commute, postpone or suspend the sentences of a convicted person.
Bilkis Bano case: Before even delving into the many legal flaws 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 sentence for rape? Rape and murder are heinous crimes; that suffers no disagreement. There has been an understanding in our society, especially after the Nirbhaya case, that rape should be dealt with with a strong hand. Even the Centre’s recent remission policy for the release of prisoners on Independence Day excluded convicts of rape from its scope.
Why discounting in Bilkis Bano is incorrect: From a purely legal point of view, discounts stand on tenuous ground. First, there is the issue of consultation with the central government before granting the remission as the investigation was conducted by the CBI. It is unclear whether the state government conducted this consultation. Otherwise, the delivery suffers from an apparent illegality because it goes against article 435 of the CrPC. This consultation is important because the cases investigated by the CBI cannot be left to the whims of the Prison Advisory Boards on remission.
Second, did the Supreme Court correctly interpret the law when deciding to return the power to consider surrender to the government of Gujarat in this particular case? 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 convicted or the order of conviction is made. The offenders in this case were convicted in Maharashtra and the government of Maharashtra should be the appropriate government. The Supreme Court, with great respect, appears to have reinterpreted the wording of the statute and perhaps even the intent of the legislature when it ruled that the appropriate government would be the state where the crime was committed.
It is logical that if a trial is transferred from State A to State B because there were apprehensions of bias in State A, shouldn’t this logic also extend to granting discount? Would it be appropriate for the government accused of bias during the trial to be given the power of remission after the trial?
Third, section 432 requires that the opinion of the judge who sentenced the accused be taken into consideration before granting a remission. Indeed, the Supreme Court has ruled that the government’s decision on surrender must be guided by the president’s opinion. There is nothing in the record to suggest that the Gujarat Advisory Council did so. The CBI judge who sentenced the accused came out and criticized the granting of the surrender.
Arbitrary enforcement of surrender: The justice system today faces a specter where some prisoners languish in jail interminably and still others – who have raped women and murdered children – are released. This is the case of some Sikh prisoners who have been in prison for over 25 years. This despite constant requests to release them on humanitarian 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 discount policies are enforced in different states is arbitrary and contrary to Section 14 of the Constitution. Remission policies should not be left to the vagaries of prison remission advisory committees.
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 the issue fundamentally disagree? The death penalty is the epitome of the coercive power of the state and it happens to be irreversible. Shouldn’t the decree decreeing the use of this power be unanimous? What happens if the other judge, equally competent, turns out to be right? 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 offenses.
In the Bachan Singh case, the Supreme Court emphasized the need for scrupulous care in deciding death penalty cases. This argument could very well be extended to imply that the death penalty can only be imposed when there is not the slightest doubt as to the quantum of the sentence imposed. This issue became clear in the Devinder Pal Singh Bhullar case in which the most senior judge of the bench of three judges, Judge MB Shah, declared Bhullar innocent and acquitted of all guilt.
At the peak level, it is evident that our criminal justice system seems to be endowed with wide discretionary power which can only lead to situations where some are released from prison while others continue to serve without any possibility of release. conditional or remission.
(The writer is the former Union Minister for Information and Broadcasting and currently MP, Lok Sabha and practicing lawyer)