Bilkis Bano Case | Gujarat Govt Says Convicts Deserve Chance of Reformation; Supreme Court Asks, ‘Why Is Remission Policy Being Selectively Applied?’

The Supreme Court questioned why the policy for premature release was being applied selectively, during Thursday’s hearing in the challenge against the remission granted to Bilkis Bano’s rapists. This question was in response to the Gujarat government advocating for prisoners convicted of heinous crimes being given a chance of reformation by being prematurely released from jail, on showing contrition, and after serving their time. “Why is the policy of remission being applied selectively and How far is this law being applied to inmates in jail? Why are our jails overcrowded? Particularly with undertrials? Why is the policy of remission being applied selectively?”, Justice BV Nagarthna asked. A bench of Justices BV Nagarathna and Ujjal Bhuyan was hearing a clutch of pleas against the decision of the Gujarat government to grant remission to the 11 convicts who had been sentenced to life imprisonment for multiple murders and violent sexual assault during the 2002 communal riots in Gujarat. Last year, on Independence Day, the convicts were allowed to walk free after their application for remission of the sentence was approved by the state government. Today, not only did the Gujarat government argue that the remission was legal and was granted after taking into consideration all factors required to be examined under the law, but it also invoked the reformative theory of punishment. “What is the purpose of remission?” Additional Solicitor-General SV Raju, appearing on behalf of the state government, asked. He further submitted – “Is the purpose of remission punishment? Does committing a heinous crime debar a convict from getting its benefit, even if the convict has reformed themselves, has displayed remorse and wants to start a new life again? Should the past always be dangling above your head? Should these convicts be condemned for all times to come? These are the questions.” In this connection, the law officer argued that the policy of remission is different from that of sentencing. The deterrent theory, he insisted in particular, does not apply with all its vigour to the question of remission since the convict has already undergone 14 or more years of rigorous imprisonment. Completing this sentence was ‘sufficient deterrence’, ASG Raju argued. The contents of the order of conviction, and that confirming the conviction indicated the intent of the courts. “Where the crime is punishable with the death penalty, and the court has handed out a life sentence, it is indicative of the fact that it was not such a heinous crime. It is not the rarest of rare case.” Justice Nagarathna clarified, “It was held to be heinous, but not the rarest of rare.” ASG Raju conceded. Where the ‘rarest of rare’ doctrine has not been applied by the court to sentence a convict to die, there existed a scope for reformation, the law officer argued – “Where it is not the rarest of rare case, surely a convict should be given the chance to reform themselves. They may have committed an offence in the moment, but may have later realised their consequences later. Whether the convict has realised the consequences can be determined on the basis of their conduct in jail, or when they are released on parole or furlough. All these factors show that the convict has now realised what they did was wrong. “The law does not say that every convict should be hanged, or even punished perpetually,” Raju asserted, “The law speaks about giving a chance to even the most hardened criminal to reform themselves.” Justice BV Nagarathna interjected. “How far is this law being applied to inmates in jail? Why are our jails overcrowded? Particularly with undertrials? Why is the policy of remission being applied selectively?” ASG Raju admitted that it would be difficult for him to provide a general answer to this question. “On the basis of the facts of a case, I may be able to answer.” “You will have to have the statistics. The state-wise statistics. The opportunity to reform should be given to every prisoner. Not only to a few prisoners.” The law officer pointed out that this question was currently being considered by a bench headed by Justice Sanjay Kishan Kaul. “I am told that this case is going on in the second court. Some guidelines are being framed. All states are going to answer.” Senior Advocate Siddharth Luthra chimed in, “The moment a convict completes 14 years, they have to prove their case for premature release. They have a module in each and every district of each and every state in place.” Justice Nagarathna asked again,“But how far is the remission policy being implemented in cases where convicts have completed 14 years? Is remission policy being implemented in all such cases, subject of course to their eligibility?” The judge illustrated her point with reference to the famous Rudul Shah case, in which a writ petition seeking compensation...

Bilkis Bano Case | Gujarat Govt Says Convicts Deserve Chance of Reformation; Supreme Court Asks, ‘Why Is Remission Policy Being Selectively Applied?’

Awstika Das

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