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 because ultimately, the constitutional functionaries are bound by the mechanism of 'aid and advice' of the 'appropriate government' while exercising such pardoning power. But, as per the Supreme Court's Judgment in State (Govt. of NCT of Delhi) vs. Prem Raj, the powers under Articles 72 and 161 of the Constitution of India are absolute and cannot be fettered by any statutory provision, such as, Sections 432, 433 or 433-A of the Cr.P.C. or by any prison rule.

The Supreme Court has observed that the State has an undoubted discretion to remit or refuse to remit the sentence and no writ can be issued to direct the State Government to release the petitioner as the procedural empowers the appropriate government to remit the whole or any part of the punishment sentence. However, the court also noted that the state's power of remission cannot be exercised arbitrarily, and the decision to grant remission should be informed, fair and reasonable, which is amenable to judicial review.

Definition of 'Appropriate Government'

Upon deciding on one of the issues i.e., “Whether the Government of State of Gujarat was competent to pass the impugned orders of remission?”, the Supreme Court in Bilkis Bano Judgment, explained the meaning of the term 'appropriate government'. The Court in Para 33.4 has held that the intent of the Parliament is, it is only the Government of the State within which the offender was sentenced which is competent to consider an application for remission and pass an order remitting the sentence of a convict. Meaning thereby, the place of occurrence of the incident or place of imprisonment of the convict are not relevant considerations for deciding the appropriate government to grant remission. According to the Court, the intention of the Parliament is that the Government of the State within which the offender was tried and sentenced is the appropriate Government to consider the application for remission and not the government where the offence was committed or the convicts are imprisoned.

The court held that the Government of Maharashtra being the appropriate government to grant remission as the trial and sentence was emanated from the State of Maharashtra, hence, the Government of Gujarat order granting remission to the convicts is invalid and against the rule of law.

Mandatory Requirement to Supply Adequate Reasons by the Presiding Judge

According to Section 432 (2) of the Cr.P.C., the appropriate government while deciding on the application of the remission, may ask for the opinion of the presiding judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused. Further, the provision also mandates that any opinion supplied by the presiding judge shall be accompanied by a reason for such opinion supplied by the presiding judge.

In Bilkis Bano case, it was contended by the convicts that it is mandatory for the government to seek the opinion of the presiding judge to decide on the application of the remission, however rejecting such contention, the court observed that the expression “may” has to be interpreted as “shall” and as a mandatory requirement under sub-section (2) of Section 432 of the Cr.P.C. the Presiding Judge must comply with while stating his opinion to the appropriate Government on an application for remission of sentence made by a convict, it cannot be held that the expression “may” in the said provision is not mandatory nor can it be left to the whims and fancies of the appropriate Government either to seek or not to seek the opinion of the Presiding Judge or the Court before which the conviction had taken place.

Further, the Supreme Court in the case of Ram Chander v. State of Chhattisgarh, while relying on the Constitutional Bench decision of Union of India v. V. Sriharan, observed that the opinion of the Presiding Judge shines a light on the nature of the crime that has been committed, the record of the convict, their background and other relevant factors. Crucially, the Court observed that the opinion of the Presiding Judge would enable the Government to take the “right” decision as to whether or not the sentence should be remitted.

On the point whether the opinion of the presiding judge shall be sole basis for deciding the remission application? The court in a recent judgment authored by Ravindra Bhatt J in Rajo @Rajwa@Rajendra Mandal v. State of Bihar, observed that the opinion of the presiding judge should not be the sole consideration for the government to decide on the premature release of the convicts, and the government should not mechanically follow the opinion of the presiding judge. Albeit, if the opinion sought from the presiding judge doesn't provide any reason or if the judge does not consider the relevant factors for grant of remission that have been laid down in Laxman Naskar v. Union of India, then the appropriate government may request the presiding judge to consider the matter afresh, as observed by the court in Ram Chander.

Recently, while stressing on the importance of supply of an adequate reason while deciding remission, the Supreme Court recently set-aside the impugned order/judgment of the High Court and directed the special judge to reconsider the application of the convicts, by noting that an opinion accompanied by inadequate reasoning would not satisfy the requirements of Section 432 (2) of the Cr.P.C. Further, it will not serve the purpose for which the exercise under Section 432 (2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors.

Factors To Be Decided While Granting Remission

In a crucial decision of Laxman Naskar v. State of West Bengal, the Court had discussed the factors to be considered before granting remission, such as: -

1. Whether the offence is an individual act of crime without affecting society at large;
2. Whether there is any chance of future recurrence of committing a crime; 
3. Whether the convict has lost his potential to commit a crime; 
4. Whether there is any fruitful purpose of confining the convict anymore;
5. Socio-economic condition of the convict's family

Moreover, the court in Bilkis Bano laid down the following among other tests which may apply to consider the application for remission, such as: -

1. that the order has been passed without application of mind;
2. that the order is mala fide;
3. that the order has been passed on extraneous or wholly irrelevant considerations;
4. that relevant materials have been kept out of consideration;
5. that the order suffers from arbitrariness

Recent Decision Directing Release of Convict on Remission

Last year, the Supreme Court, had expressed its anguish over the routine non-compliance by the State of Uttar Pradesh with its September 2022 judgement in which it had, inter alia, directed prisoners to be considered for remission once they became eligible.

The aforesaid observation came in response to the contempt petition preferred by prisoners lodged in jails in the state of Uttar Pradesh seeking premature release, who were not released despite the court directing to the district legal services authorities in Uttar Pradesh to take necessary steps in coordination with the jail authorities to ensure that all eligible cases of prisoners entitled for premature release in terms of the applicable policies would be duly considered. The court had also directed that the applications for premature release would be considered expeditiously.

The Supreme Court also ordered the release of the convicts in Rajiv Gandhi Assassination Case, by noting that the Governor in the matter of remission was bound by State cabinet decision. Observing that the inordinate delay by the Governor in taking a decision warranted Perarivalan's release, the Supreme Court invoked its special powers under Article 142 to order his release.

The Telangana High Court has also directed the state authorities to decide the remission case of the convict where the recommendation is pending before the Governor and noted that mere sending the recommendation to the Governor would not done away with the responsibility of the State to decide on the remission application, but they have to pursue with the Governor and get the clearance of the proposal. The High Court further noted that inexplicable delay while deciding the petition contributes adversely to the physical and mental attributes of the convict, given the situation when the state has decided to prematurely release the convict. To this effect, the High Court placed reliance on the Supreme Court Judgment of Sher Singh v. State of Punjab, where the court had laid down the time period for deciding every petition filed under Article 72 and 161 of the Constitution or under Sections 432 and 433 of the Cr.P.C. i.e., every petition shall be decided within three months from date of receiving such petition, as long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of Justice.