Supreme Court Summarises Factors For Deciding Remission Applications

On Monday, the Supreme Court not only set aside the remission of 11 convicts in the Bilkis Bano case but also provided detailed guidelines for considering remission applications. The top court highlighted key factors that must be taken into account, offering an illuminating roadmap for evaluating such pleas under the Code of Criminal Procedure.This verdict was handed out by a bench of Justices BV Nagarathna and Ujjal Bhuyan who heard a writ petition filed by Bilkis Bano as well as a number of public interest litigation (PIL) petitions challenging the premature release of the convicts. These convicts, who were sentenced to life imprisonment for multiple murders and gang rapes against the backdrop of the 2002 communal riots in Gujarat, were released by the Gujarat government in August 2022.The judgment emphasised that remission applications under Section 432 of the CrPC must be directed to the government of the state within whose territorial jurisdiction the applicant was convicted, known as the 'appropriate government'. This marked the major point of divergence from the Supreme Court's May 2022 decision by a bench of Justices Ajay Rastogi and Vikram Nath, in which it was held that the government competent to decide remission pleas was that of the state within the territorial jurisdiction of which the offence had taken place. Holding this verdict as per incuriam for ignoring binding precedents, particularly a constitution bench judgment in V Sriharan (2016) and the statutory mandate, the Justice Nagarathna-led bench yesterday observed –“The application for remission under Section 432 of the CrPC could be only before the government of the state within whose territorial jurisdiction the applicant was convicted (appropriate government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred.”Furthermore, the convict or someone acting on their behalf must submit the application, ensuring compliance with Section 433A, which mandates that a person serving a life sentence can seek remission only after completing fourteen years of imprisonment.The court underlined the significance of obtaining the presiding judge's opinion from the court that convicted the applicant. The opinion, as outlined in Section 432(2) of the CrPC, must clearly state whether remission should be granted or refused, supported by well-founded reasons. These reasons should directly relate to the facts and circumstances of the case and maintain a nexus with the trial's record. The presiding judge of the convicting or confirming court also ought to forward along with their opinion, a certified copy of the record of the trial.“The guidelines under Section 432(2) with regard to the opinion to be sought from the presiding judge of the court which had convicted the applicant must be complied with mandatorily,” the bench categorically held.Moreover, the court clarified that the applicable policy of remission is determined by the appropriate government and is generally aligned with the policy in force at the time of the conviction. Only if the original policy cannot be applied, a more lenient policy, if available, may be considered.The judgment also stressed the need to prevent any abuse of discretion while considering remission applications. Referring to the case of Laxman Naskar, the bench outlined specific aspects to be taken into account, including whether the crime was an individual act without societal impact, the potential for future recurrence, the convict's loss of criminal potentiality, the socio-economic condition of the convict's family, and whether there was a 'fruitful purpose' necessitating their continued incarceration.Furthermore, the Court highlighted the importance of consultation under Section 435 of the CrPC when necessary. The jail advisory committee, responsible for reviewing remission applications, should not include the district judge, given their potential dual role as both a committee member and an independent opinion provider under Section 432(2) of the CrPC.The bench concluded by insisting that reasons for granting or refusing remission should be clearly delineated in the order by passing a 'speaking order'. Additionally, it outlined specific tests for judicial review when an application for remission is granted, ensuring that the process remains fair, transparent, and free from arbitrariness –“When an application for remission is granted under the provisions of the Constitution, the following among other tests may apply to consider its legality by way of judicial review of the same – (i) that the order has been passed without application of mind; (ii) that the order is mala fide; (iii) that the order has been passed on extraneous or wholly irrelevant considerations; (iv) that relevant materials have been kept out of consideration; (v) that the order suffers from arbitrariness.”The factors indicated by the Court can be...

Supreme Court Summarises Factors For Deciding Remission Applications

Awstika Das

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