Dec 23, 2022

Bilkis Bano Judgement: Is remission different from pardon and parole?

Recently, the Supreme Court dismissed the review petition filed by Bilkis Bano, the survivor of heinous gang rape during the Godhra riots. Not only was there furore across the country over the release of the offenders, it also called to question the concept of remission and parole, especially in cases of grave crimes. Let us understand the meaning of the terms ‘remission’ and ‘parole’.

What is remission under the law?

Section 432 of the Code of Criminal Procedure, 1973 (CrPC), gives the government the power to remit the execution of a sentence for an offence, partially or wholly, with or without imposing conditions. This means that it can delay or stop a sentence the court has given, but that does not mean that the conviction of that person does not stand. It is not a pardon. The order of conviction and the sentence stands even after a remission order. Section 433A of CrPC lays down certain restrictions on this power. For crimes that can be punished with the death penalty, the sentence can only be remitted after the convict has served at least 14 years of imprisonment. 

How is remission different from pardon and parole?

The effect of remission is not the same as that of either pardon or parole. Only the President of India and the Governor of a state have the power to pardon an accused under Article 72 and Article 161, respectively, of the Indian Constitution. Pardoning of an accused completely absolves the accused of the punishment and they are no longer held guilty of a crime. 

Parole, on the other hand, is recognised under the Prison Act(s) of 1894 and 1900. It is a temporary or permanent release of a prisoner before the term of their sentence has expired to reward good behaviour, subject to some conditions. If these conditions are violated, the police can arrest the prisoner again. In case of parole,  the sentence itself is not suspended.

Remission, however, is simply a suspension of a sentence which does not alter the order of punishment or the sentence but only affects the execution of the sentence. In this case, the 11 convicts continue to be guilty of rape and murder but have been released from prison, after serving over 14 years of life imprisonment. 

What did the Supreme Court say?

On May 13 this year, the Supreme Court passed a judgement on a writ petition filed by one of the 11 convicts of the Bilkis Bano case, seeking remission of their life sentence, as per the provisions of the Remission Policy of the State of Gujarat of 1992 and the special guidelines that the Central Government issued on the occasion of “Azadi ka Mahotsav.” These guidelines endorsed the release of prisoners having completed at least half their sentence, including senior citizens and terminally ill male convicts, as well as women and transgender prisoners above the age of 50. Bano sought review of this judgement on the grounds that according to the law, the Gujarat government was not the appropriate government to remit the sentence, as the courts of Maharashtra heard their trial and sentenced them. The Supreme Court dismissed this review petition and upheld the state of Gujarat as the “appropriate government”. This decision did not address the challenges to the remission or premature release of the convicts. 

Why did the Supreme Court dismiss the review petition?

Bilkis Bano petitioned for the review on the ground that Section 432(7)(b) of CrPC and legal precedent((State of M.P v. Ajit Singh A.I.R 1976 S.C. 1855 )) by Indian courts have established that “appropriate government” refers to the government of the state in which the court passed the order of sentence. The Supreme Court overturned this by observing that the trial took place in Maharashtra only for the limited purpose of a special situation but given that the place of crime was Gujarat, the state of Gujarat will remain the “appropriate government”.

On December 13, 2022, the Supreme Court upheld its previous order and dismissed the review citing that no case for review could be made out.