The Law On Remission

In a significant verdict, the Supreme Court in the case Bilkis Yakub Rasool v. Union of India (“Bilkis Bano Case”), has quashed the order of the Gujarat Government granting 'remission' to the 11 persons, who were convicted for committing rape on Bilkis Bano during 2002 Gujarat Riots. The Court has held that the exercise of power by the State of Gujarat is an instance of usurpation and abuse of power, by observing that the state government's while remitting the sentence of life imprisonment of the convicted persons acted in tandem with the convicts and breached rule of law by granting remission.Understanding the Meaning of 'Remission''Remission' commonly denotes the reduction or moderation of a sentence imposed on an individual convicted of a crime. It involves the reduction of the duration of imprisonment or other penalties, taking into account various factors and considerations. In essence, it entails a reduction in the time to be served without altering the fundamental nature of the sentence. The State may grant early release to offenders through remission policies, weighing factors such as good conduct, rehabilitation, time served, and health. In the case of a remission, the guilt of the offender is not affected, nor is the sentence of the court, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence but is relieved from serving out a part of it. However, a remission of sentence does not mean acquittal and an aggrieved party has every right to challenge the remission order.While placing reliance on the Constitution Bench of the Supreme Court in the case of Sarat Chandra Rabha vs. Khagendranath Nath, the Supreme Court in Para 30.2 of the Bilkis Bano Judgment has explained the meaning of remission by observing that: -“an order of remission does not wipe out the offence; it also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus, does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court even though the order of conviction and sentence passed by the court still stands as it is. The power to grant remission is an executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court. According to Weater's Constitutional Law, to cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua the judgment.”Power to Grant Remission Lies on Whom?The Constitution confers the President and the Governor with the sovereign authority of pardon, commonly known as mercy or clemency power. According to Article 72, the President is empowered to grant pardons, reprieves, respites, or remissions of punishment, as well as to suspend, remit, or commute the sentence of any individual convicted of an offense. This authority extends to cases involving court-martial, offenses falling under laws related to the Union government's executive power, and instances of death sentences. Importantly, it is clarified that the President's power does not impede the Governor's ability to commute a death sentence. Whereas under Article 161, a Governor is authorized to provide pardons, reprieves, respites, or remissions of punishment. Additionally, the Governor can suspend, remit, or commute the sentence of individuals convicted under any law falling within the purview of the State's executive power. Moreover, the procedural law also grants the power of remission to the central and the state governments. Section 473 (1) of BNSS, which seeks to replace the existing code, empowers the 'appropriate government' to suspend the execution of the sentence or remit the whole or any part of the punishment to which the person has been sentenced. This power is available to State governments so that they may order the release of prisoners before they complete their prison terms. However, Section 473 (7) stipulates that if a prisoner was sentenced in a case investigated by the CBI or any agency examining the offense under a Central Act, the State government can authorize such release only after consulting with the Central government.Further, it is worthwhile to mention that the effect of the pardoning power of the constitutional functionaries like the President and the Governor under the constitution and the remission power of the 'appropriate government' is more or less similar...

The Law On Remission

Yash Mittal

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