Monday, September 25, 2023

Executive Order versus Judicial

The apex court came down on the Gujarat government for its decision to allow the release of 11 life convicts in the case. The Court said that the judicial order required convicts to be in jail for the rest of their natural life, but they were released by an executive order. It observed, “today it is this lady (Bilkis). Tomorrow, it can be you or me. There must be objective standards”

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The Supreme Court on April 18 questioned the Gujarat government about the reasons for its decision to allow premature release of 11 life convicts in the Bilkis Bano case. Bilkis was gangraped in the aftermath of the 2002 riots and her three-year-old daughter was among 12 people killed by a mob. In January 2008, a special CBI court had convicted 13 accused, out of which 11 were sentenced to life imprisonment on the charge of gangrape and murder.

The apex court bench, which consisted of Justices KM Joseph and BV Nagarathna, remarked that when remission is considered as a crime which affects the society at large, the power must be exercised keeping in mind public interest.

The bench added that just because the central government agreed with the state’s decision does not mean that the state is not required to apply its mind. Justice Joseph said that the question was whether the government thought before the decision was taken. He further questioned as to what material was referred, based on which the decision was taken. The Court said that the judicial order required convicts to be in jail for the rest of their natural life, but they were released by an executive order. “Today it is this lady (Bilkis). Tomorrow, it can be you or me. There must be objective standards…” observed Justice Joseph.

The two-judge bench was hearing pleas that challenged the premature release of the convicts, including the one filed by the victim herself. It had issued notices in the pleas on March 27.

Justice Joseph further remarked: “The law has been laid down in Venkata Reddy’s case whose remission on account of him being a ‘good Congressman’ was set aside. Very high yardstick, even though power exists. Reasons must also be given.”

Justice Nagarathna said that the bench agrees that sometimes accused persons tend to indulge in delaying tactics for which the opposite side must be given sufficient time to respond. She said: “Every time there is a hearing, one accused will come to this court and seek adjournment. Four weeks later, another accused will do the same and this will go on till December. We are aware of this strategy as well.”

Justice Joseph said a case involving the offence of rape and mass murder cannot be compared with a case of simple murder. “Will you compare apples and oranges?” he asked.

Advocate Siddharth Luthra, appearing for the respondents, said: “It is true that this is a grave offence, and I appreciate that…. But we are also dealing with men who have been in custody for 15 yrs…” Justice Joseph responded: “Have they been in custody for 15 yrs? More than 1000 days of parole.”

The Supreme Court on March 27 had issued notice on a petition filed by Bilkis, challenging the Gujarat government’s order that granted premature release to 11 people convicted to life imprisonment for gangraping her and murdering seven members of her family during the Gujarat riots 2002.

The bench while observing that the crimes committed by the convicts were “horrendous”, said that it would not be “overwhelmed” by emotions.

The Court on February 7 had agreed to constitute a Special Bench to hear the petitions challenging the order of the Gujarat government that permitted premature release of 11 convicts.

Earlier, the review petition filed by Bilkis was dismissed by the Supreme Court on December 17. The Court had, on August 25 last year, sought the response of the Gujarat government on the batch of pleas in the matter.

All the 11 convicts were released on August 15, 2022, after the state government allowed their remission applications. Visuals of the released convicts getting heroic welcome became viral in social media, leading to outcry among several sections.

In May 2022, a bench led by Justice Rastogi had ruled that the Gujarat government had the jurisdiction to consider the remission request as the offence took place in Gujarat. A review petition filed by Bilkis seeking review of this decision was dismissed by the Supreme Court in December 2022. Later, a bunch of PILs was filed in the Supreme Court questioning the relief granted to the convicts. Bilkis has also challenged the premature release of the convicts. The Gujarat government told the Supreme Court in an affidavit that the decision was taken after the approval of the central government, considering the good behaviour of the convicts and the completion of 14 years sentence by them.

However, the state’s affidavit revealed that the CBI and the presiding judge of the trial court (Special CBI Court at Mumbai) objected to the release of the convicts on the grounds that the offence was grave and heinous.

The top court on May 13 last year ruled that remission of the convicts in the case should be considered as per the policy existing at the time of conviction in the state where the crime was actually committed. It was considering a petition filed by one of the convicts, seeking direction to Gujarat to consider his application for premature release under the policy dated July 9, 1992, which was existing at the time of his conviction.

The petitioner was serving rigorous imprisonment for life after being found guilty of offences under Sections 302, 376(2)(e)(g), read with Section 149 of the Indian Penal Code. He filed a petition for premature release under Sections 433 and 433A of the CrPC seeking premature release, stating that he had undergone more than 15 years and 4 months in jail.

His petition filed before the Gujarat High Court was dismissed on the ground that since the trial had been concluded in Maharashtra, the application for premature release had to be filed in Maharashtra, and not in Gujarat.

The Supreme Court in its May 2022 judgment, however, held that the crime was admittedly committed in Gujarat and ordinarily the trial was to be concluded in the same state, and in terms of Section 432(7) CrPC, the appropriate government in the ordinary course to decide on plea for remission would be the Gujarat government. Therefore, since the crime happened in Gujarat, all further proceedings, including plea for remission, have to be considered as per the policy of the Gujarat government. Pursuant to the May 13 judgment of the top court, the Gujarat government granted remission to 11 convicts. The convicts, who had been sentenced to life imprisonment, were released by the Gujarat government ahead of the assembly polls in the state.

A separate review petition has been filed by Bilkis against the apex court’s May 13 verdict, contending that the remission policy of Maharashtra should apply in the present case, instead of 1992 remission policy of Gujarat, since the trial took place in Maharashtra.

In May 2017, the conviction order was upheld by the Bombay High Court. In 2019, the Supreme Court directed Gujarat to provide Rs 50 lakh compensation to Bilkis as well as a government job and accommodation.

As per a new rule added to the jail manual, the Delhi Prisons department will grant remission to inmates from the time they are lodged in prison as undertrials which will be based on good behaviour, conduct and labour that will apply retrospectively, post-conviction.

Remission is the complete ending of a sentence at a reduced point. In remission, the nature of the sentence remains untouched, while the duration is reduced. The result of the remission is that the prisoner is given a certain date on which he shall be released, and in the eyes of the law, he would be a free man. However, in case of breach of any of the conditions of remission, it will be cancelled, and the offender has to serve the entire term for which he was originally sentenced. The provisions which empower the government for exercising the powers regarding, suspension, commutation, remission are mentioned under Sections 432, 433 of CrPC.

The Supreme Court in January this year while rejecting a plea by a murder convict for premature release said that granting remission/ premature release of a convict is the function of the government and not courts. A bench, comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala, had instructed the competent authority of Gujarat to consider the request for premature release of the petitioner as per its 1992 policy.

The apex court in the matter of State of Haryana vs Mahender Singh (2007) observed that, even though no convict has a fundamental right of remission, the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors.

In 2020, the Punjab and Haryana High Court ruled that trial courts have no power to impose the penalty of lifelong imprisonment without remission or parole. The Court was hearing a petition challenging the Hisar Divisional Commissioner’s order rejecting a petitioner’s request for parole. The reason given for this rejection was that the terms of her imprisonment sentence, imposed by a trial court, did not allow her parole.

—By Shivam Sharma and India Legal Bureau

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