Context:

• Supreme Court’s quashing the Gujarat government’s order prematurely releasing 11 persons sentenced to life imprisonment for gangrapeing a five-month pregnant Bilkis Bano, and killing 14 members of her family, including her three-year-old daughter, in the 2002 Gujarat riots has raised the question on remission process being used by Governments for political reasons.

Definition and General procedure:

• Remission is the power of the Union and State executive to reduce the amount of sentence of a convicted prisoner without changing the character of imprisonment.
• Article 72 and 161 of the Constitution provide powers to the President and Governor respectively to grant pardon, commutation, remission, respite or reprieve to a convict. 
• These are sovereign powers vested in the heads of the Union and State executive to be exercised on the advice of the council of ministers. 
• Apart from this, the appropriate State government under Section 432 of the Criminal Procedure Code, 1973 (CrPC) may remit the whole or part of the punishment to which a convict has been sentenced. 
• 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. 
• Prison is a State subject. As a result, prison rules of each State identify certain reformative and rehabilitative activities that the prisoners can undertake in order to earn remission in the form of days. 
• The total number of days earned in remission is deducted from the actual sentence imposed by the court. 
• Remission is rooted in the logic that, ultimately, prisons are meant to be rehabilitative spaces rather than simply being an instrument to carry out retributive punishment.
• In the context of life convicts, they necessarily have to serve a minimum of 14 years in prison before they can become eligible to apply for remission. 
• An application does not guarantee remission and the setting of the earned remission against the punishment imposed by the courts.

Case laws associated with remission process:

• A Constitution bench in the Union of India vs V. Sriharan case(2015)has mentioned that the appropriate government to decide a remission application is the State where the convicts are sentenced. 
  • In Bilkis Bano case, sentence was given in Maharashtra but the Gujarat government had given remission. The Court notes that the Gujarat government “usurped” power from the Government of Maharashtra. 
• Remission application has to be individually considered by a committee based on factors laid down by the Supreme Court in Laxman Naskar vs State of West Bengal (2000). 
  • These include examining whether the offence is an individual act of crime without affecting the society at large; chance of recurrence of crime; whether the convict has lost their potentiality in committing crime; whether there is any fruitful purpose of confining the convict any more; and socio-economic condition of the convict’s family.
• The Supreme Court in Epuru Sudhakar vs State of Andhra Pradesh (2006) has held that judicial review of an order of remission is only available when there is a non-application of mind; relevant materials have not been considered, the order is malafide, or based on irrelevant considerations or suffers from arbitrariness. 
  • This concern of non-application of mind is writ large in the case of the 11 convicts in Bilkis Bano’s case because the orders of the Gujarat government for each of them are exact copies.

The Constitution has accorded the clemency powers to the President and the Governor to correct the wrongs by the Judiciary. This extraordinary power’s use should be based on the “rule of law”.