Supreme Court Summarises Factors For Deciding Remission Applications

This verdict was handed out by a bench of Justices BV Nagarathna and Ujjal Bhuyan who heard a writ petition filed by Bilkis Bano as well as a number of public interest litigation (PIL) petitions challenging the premature release of the convicts. These convicts, who were sentenced to life imprisonment for multiple murders and gang rapes against the backdrop of the 2002 communal riots in Gujarat, were released by the Gujarat government in August 2022.

The judgment emphasised that remission applications under Section 432 of the CrPC must be directed to the government of the state within whose territorial jurisdiction the applicant was convicted, known as the 'appropriate government'. This marked the major point of divergence from the Supreme Court's May 2022 decision by a bench of Justices Ajay Rastogi and Vikram Nath, in which it was held that the government competent to decide remission pleas was that of the state within the territorial jurisdiction of which the offence had taken place. Holding this verdict as per incuriam for ignoring binding precedents, particularly a constitution bench judgment in V Sriharan (2016) and the statutory mandate, the Justice Nagarathna-led bench yesterday observed –

“The application for remission under Section 432 of the CrPC could be only before the government of the state within whose territorial jurisdiction the applicant was convicted (appropriate government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred.”

Furthermore, the convict or someone acting on their behalf must submit the application, ensuring compliance with Section 433A, which mandates that a person serving a life sentence can seek remission only after completing fourteen years of imprisonment.

The court underlined the significance of obtaining the presiding judge's opinion from the court that convicted the applicant. The opinion, as outlined in Section 432(2) of the CrPC, must clearly state whether remission should be granted or refused, supported by well-founded reasons. These reasons should directly relate to the facts and circumstances of the case and maintain a nexus with the trial's record. The presiding judge of the convicting or confirming court also ought to forward along with their opinion, a certified copy of the record of the trial.

“The guidelines under Section 432(2) with regard to the opinion to be sought from the presiding judge of the court which had convicted the applicant must be complied with mandatorily,” the bench categorically held.

Moreover, the court clarified that the applicable policy of remission is determined by the appropriate government and is generally aligned with the policy in force at the time of the conviction. Only if the original policy cannot be applied, a more lenient policy, if available, may be considered.

The judgment also stressed the need to prevent any abuse of discretion while considering remission applications. Referring to the case of Laxman Naskar, the bench outlined specific aspects to be taken into account, including whether the crime was an individual act without societal impact, the potential for future recurrence, the convict's loss of criminal potentiality, the socio-economic condition of the convict's family, and whether there was a 'fruitful purpose' necessitating their continued incarceration.

Furthermore, the Court highlighted the importance of consultation under Section 435 of the CrPC when necessary. The jail advisory committee, responsible for reviewing remission applications, should not include the district judge, given their potential dual role as both a committee member and an independent opinion provider under Section 432(2) of the CrPC.

The bench concluded by insisting that reasons for granting or refusing remission should be clearly delineated in the order by passing a 'speaking order'. Additionally, it outlined specific tests for judicial review when an application for remission is granted, ensuring that the process remains fair, transparent, and free from arbitrariness –

“When an application for remission is granted under the provisions of the Constitution, the following among other tests may apply to consider its legality by way of judicial review of the same – (i) that the order has been passed without application of mind; (ii) that the order is mala fide; (iii) that the order has been passed on extraneous or wholly irrelevant considerations; (iv) that relevant materials have been kept out of consideration; (v) that the order suffers from arbitrariness.”

The factors indicated by the Court can be summarised as follows : 

(a) The application for remission under Section 432 of the CrPC could be only before the Government of the State within whose territorial jurisdiction the applicant was convicted (appropriate Government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred.

(b) A consideration for remission must be by way of an application under Section 432 of the CrPC which has to be made by the convict or on his behalf. In the first instance whether there is compliance of Section 433A of the CrPC must be noted inasmuch as a person serving a life sentence cannot seek remission unless fourteen years of imprisonment has been completed.

(c) The guidelines under Section 432(2) with regard to the opinion to be sought from the Presiding Judge of the Court which had convicted the applicant must be complied with mandatorily. While doing so it is necessary to follow the requirements of the said Section which are highlighted by us, namely,

(i) the opinion must state as to whether the application for remission should be granted or refused and for either of the said opinions, the reasons must be stated;

(ii) the reasons must have a bearing on the facts and circumstances of the case;

(iii)the opinion must have a nexus to the record of the trial or of such record thereof as exists; (iv)the Presiding Judge of the Court before or by which the conviction was had or confirmed, must also forward along with the statement of such opinion granting or refusing remission, a certified copy of the record of the trial or of such record thereof as exists.

(d) The policy of remission applicable would therefore be the Policy of the State which is the appropriate Government and which has the jurisdiction to consider that application. The policy of remission applicable at the time of the conviction could apply and only if for any reason, the said policy cannot be made applicable a more benevolent policy, if in vogue, could apply.

(e) While considering an application for remission, there cannot be any abuse of discretion. In this regard, it is necessary to bear in mind the following aspects as mentioned in Laxman Naskar, namely, -

(i) Whether the offence is an individual act of crime without affecting the society at large?

(ii) Whether there is any chance of future recurrence of committing crime?

(iii) Whether the convict has lost his potentiality in committing crime?

(iv) Whether there is any fruitful purpose of confining this convict any more?

(v) Socio-economic condition of the convict's family.

(f) There has also to be consultation in accordance with Section 435 of the CrPC wherever the same is necessitated.

(g) The Jail Advisory Committee which has to consider the application for remission may not have the District Judge as a Member inasmuch as the District Judge, being a Judicial Officer may coincidently be the very judge who may have to render an opinion independently in terms of sub-section (2) of Section 432 of the CrPC.

(h) Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order.

(i) When an application for remission is granted under the provisions of the Constitution, the following among other tests may apply to consider its legality by way of judicial review of the same.

(i) that the order has been passed without application of mind;

(ii) that the order is mala fide;

(iii) that the order has been passed on extraneous or wholly irrelevant considerations;

(iv)that relevant materials have been kept out of consideration;

(v) that the order suffers from arbitrariness.

In this key verdict, the top court on Monday morning ruled in favour of Bilkis Bano, a gang rape survivor, holding that the State of Gujarat lacked jurisdiction to decide on remission as the trial took place in Maharashtra. Consequently, the remission orders were declared invalid, and the court directed the 11 convicts to report to the concerned jail authorities within two weeks and surrender. "Rule of law must prevail. Since the remission orders are set aside, the natural consequences must follow."

After an 11-day-long hearing that began in August, a division bench of Justices BV Nagarathna and Ujjal Bhuyan had reserved its judgment in this case on October 12.

Advocate Shobha Gupta appeared for Bilkis, while Senior Advocates Indira Jaising, and advocates Vrinda Grover, Aparna Bhat, Nizamuddin Pasha, and Pratik R Bombarde represented various public interest litigants. Additional Solicitor-General SV Raju appeared for both the State of Gujarat and the Union of India. The now-released convicts were represented by Senior advocates Sidharth Luthra, Rishi Malhotra, S Guru Krishnakumar, Advocate Sonia Mathur, and others.