The laws around remission policy

Clemency Powers

• Article 72 and 161 of the Constitution empower the President and Governor to grant pardon, commutation, remission, respite, or reprieve to a convict.
• State governments, under Section 432 of the Criminal Procedure Code, 1973 (CrPC) may also remit sentences.
• In case of life imprisonment convicts, this remission can be done only after a period of 14 years in jail as per Section 433A of the CrPC.

Background of the Case

• The crimes for which the 11 persons were convicted occurred in Gujarat in 2002.
• However, considering the need for fair trial, these cases were shifted to Maharashtra by the Supreme Court in 2004.
• In 2022, one convict sought remission under Gujarat's 1992 policy, leading to their release in August 2022.

The Issues

1. Jurisdiction and Procedure

• The CrPC specifies Maharashtra, where sentencing occurred, as the appropriate State for considering remission.
• Failure to seek the opinion of the presiding judge of the convicting court before considering the remission petition, as required by law.

2. Supreme Court Precedents

• The Supreme Court in Laxman Naskar versus Union of India (2000) case outlined five grounds for remission, emphasizing societal impact.
• In Sangeet versus State of Haryana (2012), it established that life imprisonment convicts don't have an automatic right to premature release, and remission should be case-specific.
  • The Union Home Ministry had issued an advisory in February 2013 prescribing that remission should not be granted in a ‘wholesale manner’.

3. Policy Discrepancy

• The Gujarat government's 2014 remission policy explicitly barred remission for those convicted of rape and murder.
• However, the instant remission was granted based on the policy of 1992 (that had no such exclusions).

Supreme Court's Ruling

• The Supreme Court declared the Gujarat government inappropriate for considering the remission petition.
• The May 2022 order directing Gujarat to consider remission was deemed null and obtained through fraud and suppression of facts before the court.
• The 11 convicts were ordered to surrender before jail authorities within two weeks.
• Maharashtra was identified as the appropriate government for considering remission petitions, following established guidelines.

Conclusion

• The Supreme Court's ruling reinstates faith in the judicial system, emphasising adherence to the rule of law.
• The decision sets aside a controversial remission order, signalling the importance of considering the societal impact of heinous crimes in determining clemency.