Remission without reform: On the release of 11 convicts in Bilkis Bano case
Premature release of prisoners must be done with discretion and wisdom
The release of 11 convicts sentenced to life for the heinous murder of seven people and the gang-rape of three women during the Gujarat communal pogrom of 2002 is a questionable decision by the State. On the face of it, it also appears to be illegal, as their terms seem to have been remitted without the required consultation with the Union government. It defies logic that those convicted for direct involvement in the rape of three women, the murder of a three-year-old and six others can be considered candidates for premature release under any remission policy. One of the convicts had obtained an order from the Supreme Court in May, under which Gujarat, the State in which the crime occurred, was held to be the appropriate government to consider his premature release. The Court had asked the State to decide the application under its 1992 remission policy, as it was the relevant one on the date of conviction in 2008. However, it is difficult to treat this as a waiver of the requirement under Section 435 of the Code of Criminal Procedure, which makes consultation with the Centre mandatory. Further, a Constitution Bench, in 2015, held that ‘consultation’ meant ‘concurrence’ in this provision. The remission also runs contrary to the spirit of contemporary thinking on treating crimes against women and children, especially rape combined with murder, as so heinous that the perpetrators should not be considered for remission. It is not clear if the committee that recommended remission had considered the disquieting effect the release of these prisoners might have on the survivors and other members of the affected community.
A life sentence normally means that a convict has to spend the natural life in prison. The Cr.P.C. does permit premature release in the form of remission or commutation, but it should be based on a legal and constitutional scheme, and not on a ruler’s whimsy. The power of remission has been conferred on the Union and State governments — apart from the sovereign power of clemency enjoyed by the President and Governors — so that it can be used to temper the law’s rigours with an element of grace. While the benefit of remission ought not to be denied to anyone without a ray of hope that they will be free one day, it is a power to be exercised with discretion and wisdom. Further, any decision on remission should be linked to the convict’s expression of regret and some promise of reform. It would be unjustified if given for political considerations merely because of elapse of the minimum number of years they have to serve. With an Assembly election due in Gujarat at the end of the year, it is difficult not to read political significance into this decision. The sight of the released convicts being greeted and feted on their release will not sit easy on the country’s conscience.