Yes, generally speaking, state governments have the power to release rape and murder convicts if it is permissible under the applicable remission policy of that state.
This, despite the Union Government's guidelines, from earlier this year, stating that special remission may not be granted to “prisoners convicted for the offence of rape, human trafficking and under the Protection of Children from Sexual Offences Act, 2012 (POCSO) and Immoral Traffic (Prevention) Act, 1956.”
How, though?
Because 'Prisons' is a state subject and each state has its own prison rules. Union government's guidelines may be advisory in nature, but they are not binding in this regard. The state can also grant remission because of the power the state government wields under Section 432 of the Criminal Procedure Code (to suspend or remit sentences).
But wait...
Just because the state government has the power to remit sentences despite the Union government advising against it in certain cases (at least on paper), does not automatically make it okay. Also, experts suggest that it does not mean that this power is without exceptions.
Sometimes, a remission may raise eyebrows (and red flags).
This happened recently, when 11 men sentenced to life imprisonment in the 2002 Bilkis Bano gang-rape case went home to celebration and sweets after the government of Gujarat approved their release under its remission policy on Monday, 15 August.
So how exactly do legal experts view Gujarat government's approval of the early release of these 11 convicts? Let us find out.
'A Strange Case'
Speaking to The Quint, Fuzail Ahmad Ayyubi, Advocate on Record at the Supreme Court said:
"This is, of course, a strange case where the crime was committed in Gujarat; the trial was then transferred to Maharashtra for various reasons. Eventually the appeals were also disposed by the Bombay High Court. However, the convicts were undergoing their sentence in a Gujarat prison as the offence was committed there and the case was transferred out of state for trial only."
Thereby, Ayyubi pointed out, when one of the convicts approached the Bombay High Court, the high court was of the view that the appropriate government for the purposes of remission would be the Gujarat government as it is where the offence was committed.
Later on, another convict approached the Gujarat High Court, but the high court then said that the Maharashtra government would be the appropriate government and not Gujarat.
"So two divergent positions emerged here," Ayyubi said.
Finally, this game of passing the parcel was put to an end when the apex court decided in May 2022 that the Gujarat government would be the appropriate authority to decide the remission application.
Ayyubi pointed out, however, that the top court order also records that the Gujarat government had submitted that the Maharashtra government would be the appropriate government, but had gone ahead with finally asking the Gujarat government to make the decision.
“In the same breath, the Supreme Court also directed that the Gujarat government will consider the remission under the policy of 1992 which was applicable at the time of conviction,” Ayyubi noted.
State Government Could Not Have Ordered This Remission Without the Union Government's Nod: Advocate Vrinda Grover
Meanwhile, in conversation with Mojo Story, Advocate Vrinda Grover stated that as per Section 435 CrPC, the power of remission awarded to the state government, in a case investigated by the CBI (agency empowered to make investigation into an offence under any Central Act), shall not be exercised by the state government except in consultation with the central government.
Given that the Bilkis Bano case was in fact investigated by the CBI, "the central government has endorsed, approved, affirmed this remission," Grover said.
This, Grover pointed out, is "the same central government which puts out a policy saying no rape convict is to be enlarged on remission.”
Experts Ask: What About Equal Application of Law?
Meanwhile, according to Supreme Court advocate Shadan Farasat, even if the state government's order was somehow permissible, it does not necessarily point towards equal application of law.
"On the face of it, the state government may have the power to do this. But is it an exercise of power which is bona fide, or is it an exercise of power to favour only one subset of convicts, whereas in other similar serious cases, such remissions are being denied by the state?"Supreme Court Advocate Shadan Farasat
It may be worth pointing out here that Article 14 of the Constitution of India guarantees equality before law as a fundamental right.
It says:
"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India," and prohibits "discrimination on grounds of religion, race, caste, sex or place of birth."
Further, in a seeming elaboration of Farasat's arguments, Advocate Tanveer Ahmed Mir said:
"State government's actions, perceptibly in this case, fly in the face of central government guidelines, guidelines issued by the Supreme Court; and also by the fact of the sheer horror of the case, these people did not deserve remission."
In 2002, 19-year-old Bilkis Bano was gang-raped by a mob in the aftermath of the violence that erupted following the Sabarmati Express fire in Gujarat's Godhra. She was five-months pregnant then, and had fled her village with her two-year-old daughter and 15 other family members when the incident took place. Of the 17-member group that she was a part of, Bilkis was the lone woman survivor of the heinous attack.
"Remission or pardon is not a matter of right, it is a matter of discretion. But here the discretion seems to have been exercised clearly on a communal tinge, just because the accused belonged to the majority committee and the victim was from the minority community," Mir added.
The 2002 riots will be remembered as one of the most devastating chapters of brutal sectarian violence in the history of independent India. Consequently, people from both sides of the flaming fence of hatred were arrested en masse. Thus, in the aftermath of remission of the 11 convicts belonging to just one side of the fence, Mir asked:
"Will the Gujarat government, exercising similar discretion, be willing to remit sentences of and offer pardon to the presently-incarcerated Muslim accused?"
At this point it may be worth recalling what the Supreme Court had said in a 2021 judgment (Modified Voluntary Retirement Scheme of 2002 of Azam Jahi Mill Workers Association vs. National Textile Corporation Limited):
"Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals," and "...when the equals are treated unequally, there is a violation of Article 14 of the Constitution."
And what they had succinctly noted in 2020 (Arnab Manoranjan Goswami vs The State Of Maharashtra):
"Liberty is not a gift for the few."
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