After a long-long time, interesting arguments challenging the apex court’s sharp observations equally appear to have been countered by the defense counsel of the Gujarat state Government in the release of the convicts of the Bilkis Bano gang rape case. Interestingly, the exchange of heated arguments also exposes perceptions as well as interpretations differences between the lower courts and the apex court. For the first time, the Gujarat state government seems to have taken the apex court by its horns, while referring to its decision to convert death penalties into life sentences. Sparks flew all over when the bench of the apex court consisting of Justices BV Nagarathana and Ujjal Bhuyal chose to observe on Thursday that state governments can’t be selective while granting remission to convicts in the case of the Gujarat government’s decision on the premature release of Bilkis Bano gang rape convicts. A bench of the top court consisting of Justices K.M. Joseph and B.V. Nagarathna during an earlier hearing said that when remission is considered in heinous crimes that affect the society at large, “the power must be exercised keeping in mind public interest”. the Gujarat government about the reasons behind its decision to grant remission to the 11 life convicts in the Bilkis Bano case, 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. It further added saying that the gravity of the offense must be considered before convicts are released prematurely. It also observed that “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 law, but it also invoked the reformative theory of punishment.” To this, the state’s Additional Solicitor-General SV Raju, appearing on behalf of the state government asked; “what is the purpose of remission?”“Is the purpose of remission punishment? Does committing a heinous crime debar a convict from getting its benefit, even if the convict has reformed, has displayed remorse, and wants to start a new life again? Should the past always be dangling above their head? Should these convicts be condemned for all times to come?” Law Officer’s questions rained on the bench.
He (the law officer) also 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 vigor to the question of remission since the convict has already undergone 14 or more years of rigorous imprisonment. Completing this sentence was ‘sufficient deterrence’. 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 cases.” But, the rebuttal came from Justice Nagarathn in the form of clarification; “It was held to be heinous, but not the rarest of rare.” At this point, the 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. Thus, the law officer tried to justify that; “Where it is not the rarest of rare cases, surely a convict should be given the chance to reform themselves. They may have committed an offense at the moment but may have realized the consequences later. Whether the convict has realized the consequences can be determined based on their conduct in jail, or when they are released on parole or furlough. All these factors show that the convict has now realized what they did was wrong. Hence, the law does not say that every convict should be hanged, or even punished perpetually,” “The law speaks about giving a chance to even the most hardened criminal to reform themselves” the Law officer reiterated.
Justice BV Nagarathna interjected saying. “How far is this law being applied to inmates in jail? Why are our jails overcrowded? Particularly with the under-trials. Why is the policy of remission being applied selectively?” To that the ASG admitted that it would be difficult for him to provide a general answer to this question. “But, based on the facts of a case, I may be able to answer. You will have to have the statistics. Yes, the state-wise statistics. The opportunity to reform should be given to every prisoner. Not only to a few prisoners.” The law officer further pointed out that this question was currently being considered by a bench headed by Justice Sanjay Kishan Kaul and he was told that this case is going on in the second court. Some guidelines are being framed. All states are going to answer.” And, the senior Advocate Siddharth Luthra chipped in at this juncture and said, “The moment a convict completes 14 years, they have to prove their case for premature release. They have a module in every district of every state in place.” To this, 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 concerning the famous Rudul Shah case, in which a writ petition seeking compensation was filed by a prisoner who was illegally detained in jail for over 14 years despite being acquitted by a trial court in the murder of his wife. “On the other hand, you have cases like Rudul Shah. Even though there was an acquittal, he continued to remain in prison. Extreme cases, both this side and that side.” Against that backdrop, the Convicts’ plea for remission was supported by the non-imposition of a more strenuous sentence by the court: At the stage of remission, factors like the conduct of a convict in jail, or while out on parole or furlough need to be considered. “There are trappings of reformation in remission. If what they are saying is true, considerations regarding jail conduct and other things would not be relevant. Remission would be allowed or disallowed based on the heinousness of the crime.”
The law officer also argued that the court could have handed out a life sentence without any possibility of remission, as has been done in some cases. Other fetters on their liberty, even after the completion of 14 years, may have been imposed. The court that convicted the accused and the one that confirmed their conviction and sentence, the law officer contended, were aware of the remission policy in force which would allow the premature release of convicts, subject to their fulfillment of other criteria. Based on their sentence of life imprisonment simplifies, “The consideration of the courts should also be understood by referring to the contents of the judgment and the sentence imposed. The fact that the courts did not award more strenuous imprisonment leads to the inference that the court was possible, and in my submission, definitely of the view that the convicts would get the benefit of the 1992 policy. This shows the mind of the courts.”Not only this, the ASG also attempted to convince the bench that the concurrent sentence handed to the convicts was telling of the court’s view on them getting the benefit of a remission policy. “The ordinary rule is a concurrent sentence, but courts have been known to award consecutive sentences as well. Therefore, the court was not so carried away by the fact that these offences were so heinous, they required consecutive sentences.” Although, the argument put forth by the ASG appears to have not convinced the bench by observing “Here, the highest punishment is awarded after the death penalty. When life imprisonment is awarded, it has to be concurrent. It cannot be consecutive. There is only one life…hopefully.” To this, ASG Raju explained, “My submission is that the court could have said that the second sentence would continue after remission in the first. This was not done in this case.” Thus far, the heating exchanges between the apex court and the state’s counsel, indeed stirred a hornet’s nest and the onus is on the apex court to issue guidelines to lower courts in dealing with such cases. At the same time, the legislature too needs to give better clarifications to the existing laws, if necessary even amending them, to ensure none hereafter misinterpret them.