Silent Third Party: Victim Exclusion In India's Sentence Remission Framework

Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS") empowers the "appropriate Government" to suspend or remit a sentence, in whole or in part, on an application made by or on behalf of the convict. Section 475 restricts this power for life convicts whose offence was punishable with death, requiring at least fourteen years of actual imprisonment before the application can be considered, and Section 474 governs commutation of one form of sentence into a lighter one. Article 72 and Article 161 of the Constitution confer a parallel clemency power on the President and the Governor respectively None of these provisions require the government to notify, or even locate, the person against whom the offence was committed before the decision is taken. The release and subsequent recall of the eleven convicts in the Bilkis Bano case have brought this gap back into focus, raising the question this piece examines: is the victim's absence from the remission process a structural gap in the statute, or a deliberate feature of a power that has always been understood as an act of executive grace rather than adjudication?

The Statutory Design

The test governing premature release was laid down in Laxman Naskar v. Union of India, where the Supreme Court identified five factors: whether the offence was an individual act not affecting society at large, whether there is a possibility of recurrence, whether the convict has lost the potential to commit crime, whether continued incarceration serves any purpose, and the socio-economic condition of the convict's family. Every one of these factors is oriented toward the convict or toward an undifferentiated notion of society. None requires the government to ascertain the victim's current safety, residence, or view on the application.

This is not an isolated omission in an otherwise victim-conscious statute. The BNSS itself defines "victim" and confers three specific participatory entitlements: a proviso to Section 413 allowing a victim to appeal against an acquittal, a conviction for a lesser offence, or inadequate compensation a proviso to Section 18(8) permitting a court to allow a victim to engage counsel to assist the prosecution; and Section 396, which establishes state victim compensation schemes. The Supreme Court has also read a right to be heard at the bail stage into the statutory definition of victim, most notably in the Lakhimpur Kheri matter, Jagjeet Singh v. Ashish Mishra, where a three-judge bench held that a victim has a "legally vested right to be heard at every step post the occurrence of an offence" No comparable provision, and no comparable judicial reading, extends to the remission power under Section 473. The same person who may appeal an acquittal and may be heard at the bail stage has no corresponding standing when the same convict's sentence comes up for remission years later.

The Convict's Side Keeps Expanding

If anything, the asymmetry has deepened rather than narrowed in recent years, not because the victim's position has weakened, but because the convict's position has continued to strengthen on the very same provision. The framing of Section 473 requiring "an application made by or on behalf of the convict" was already simplified, as sub-section (1) allows the appropriate government to suspend or remit "at any time," with or without an application, while the application procedure set out in sub-section (2) is simply one route by which the question can reach the government. In 2025, the Supreme Court closed even that residual gap between the provision's text and its practice. In In Re: Policy Strategy for Grant of Bail (2025), the Court held that it is the appropriate government's duty to automatically consider every eligible convict for premature release once the applicable policy's conditions are met, and that a convict need not apply at all for the process to be triggered.

The ruling was framed, understandably, as convict-protective as it removes a procedural obstacle, that is, the need to apply, often without legal assistance, from inside a prison, that had left otherwise-eligible convicts languishing for want of a piece of paper. But it also illustrates, with some precision, the shape of the asymmetry this piece is concerned with. The Court was prepared to hold that the government owes convicts a duty to consider their release proactively, without waiting to be asked. No comparable duty, to consider the victim's position, to seek them out, to find out whether the convict's release raises any safety concern specific to them, has ever been read into the same section. The class of persons the government must actively think about before remitting a sentence has, if anything, grown wider on the convict's side of the ledger and stayed exactly as empty as before on the victim's.

Bilkis Bano: A Correction, Not A Right

The Gujarat government remitted the sentences of the eleven convicts in the Bilkis Bano case in August 2022, applying a 1992 remission policy that predated the state's own 2014 revision barring remission for rape and murder convictions. Bilkis Bano was not informed before the decision was taken; she and three other petitioners learned of it through public reporting and then approached the Supreme Court directly.

In Bilkis Yakub Rasool v. Union of India, decided on 8 January 2024 by a bench of Justices B.V. Nagarathna and Ujjal Bhuyan, the Supreme Court set the remission aside. The ratio, however, rests on two grounds distinct from any right of the victim to be consulted. First, the Court held that Gujarat was not the government competent to entertain the remission applications, since that role belongs to the state where the offender was sentenced, in this instance Maharashtra, and not the state where the offence occurred or the sentence was being served. Second, the Court found that its own earlier order, which had directed Gujarat to consider the remission applications, had been obtained through suppression of material facts and was accordingly a nullity, going so far as to hold it per incuriam. The judgment does not hold, as either ratio or obiter, that a victim possesses a statutory or constitutional entitlement to notice or hearing before a remission decision is made. The outcome corrected a jurisdictional defect that the petitioners happened to expose through litigation; it did not, however, establish a general statutory or constitutional right of a victim to notice or hearing before a remission decision.

The Available Recourse Is Reactive

Where a remission order suffers from no jurisdictional defect, the affected party's only recourse is judicial review on the limited grounds recognised in Epuru Sudhakar v. Government of A.P., that the order was passed without application of mind, that it is mala fide, that it rests on extraneous or wholly irrelevant considerations, that relevant material was kept out of consideration, or that it suffers from arbitrariness It is worth noting that the petitioners in Epuru Sudhakar were themselves relatives of murder victims, challenging a remission granted to the convict without any prior notice to them. In the absence of a specific statutory or policy-based notice requirement, the principal recourse available to a victim's family is to challenge the remission decision after it has been made, and only on narrow grounds concerning the government's decision-making process, not on any ground going to their own interest in being heard.

An Unresolved Gap

The absence of a notice requirement in Section 473, read against the presence of comparable rights elsewhere in the same statute, suggests the omission is not merely an oversight the legislature has not yet reached. It reflects an underlying assumption that remission, being an executive function directed at reforming the offender and easing the burden of incarceration, is a matter between the convict and the State alone. Whether that assumption should continue to hold once Indian criminal procedure has already accepted victim participation at the appellate and bail stages is a separate question, and one the Bilkis Bano litigation did not require the Court to answer. Until the legislature extends a notice-and-representation requirement to Section 473 comparable to what already exists under Section 413, or a court reads such a requirement into the remission framework, the law does not presently recognise a general statutory right of a victim to notice or representation before a remission decision is made.

Author is a BBA-LLB (Hons.) student at Faculty of Law, University of Delhi. Views are personal.