Pause in justice for Bilkis
All 11 convicts sentenced to undergo life imprisonment in the post-Godhra Bilkis Bano rape and murder case walked free out of the Godhra sub-jail on August 16 after the Gujarat Government released them prematurely. Questions are being asked whether it was legally and procedurally correct to free them before time. It is said that justice should not only be done, but also appear to have been done. A large cross-section of the people is of the opinion that complete justice still awaits Bilkis.
Prior consultation by the Gujarat Government with the Centre was mandatory. In its absence, the order is liable to be set aside by a competent court.
As per Section 45 of the Indian Penal Code, ‘life’ denotes natural life of a person. Accordingly, on a number of occasions, the SC has made it abundantly clear that life imprisonment means imprisonment till natural life, unless the sentence is tempered with clemency provisions contained in the Constitution and the Criminal Procedure Code (CrPC). Clemency is a means to make law and justice as good neighbours. Executive clemency in its various forms has been used to adjust the scales of justice for centuries.
Clemency is the most essential and defining virtue of the sovereign. Articles 72 and 161 of the Constitution empower the President and Governors, respectively, to grant pardon and suspend, commute and remit punishment at any time. The objective considerations behind the exercise of clemency include public interest, justice and reformation, rehabilitation and reintegration of offenders in the mainstream of society. This power is unlimited and unfettered, but subject to limited judicial review.
The executive governments, including Central and state governments in their respective jurisdictions, are also bestowed with powers akin to limited clemency under the provisions of the CrPC. Section 432 provides for suspension and remission of a quantifiable sentence, whereas, Section 433 empowers the State to commute any sentence, either on request, or even suo motu. Remission and commutation of sentence are two different concepts. In the case of Prem Raj v. State of Delhi Administration, the SC has clarified that remission means reducing the punishment in the same category of sentence, whereas, commutation entails converting a punishment to one of the lower category. Therefore, life imprisonment is always commuted. It is incorrect to use the term ‘remission’ in the context of life imprisonment, as is being used in media reports and debates. This power is exercised by governments as per a notified policy in order to ensure transparency and is always justice-able.
A majority of the people do not know that even the prison authorities are empowered to shorten sentence of a convict up to one-fourth of the total sentence, if the convict exhibits good conduct and follows all prison rules and regulations. In case of good conduct, lifers and other convicts, who have undergone 14 years of total sentence in jail, the superintendent is legally obliged to present their case for premature release before a state-level board, to be presided over by the jail minister. It was in this background that one of the convicts in the Bilkis case, who has already undergone more than 15 years of sentence, approached the court and the SC directed the Gujarat Government to consider his premature release case as per the policy.
Commutation of the sentence of a convict in a case investigated by the CBI is subject to another restriction imposed in Section 435. Under this provision, such convict can be released only in consultation with the Central Government. In the case of Rajiv Gandhi’s killers, a SC Constitutional Bench has clarified that ‘consultation’ in that context means ‘primacy of the opinion of the Central Government’ and in case of any difference of opinion, the opinion of the Central Government shall prevail.
No doubt, the convicts in the Bilkis case have acquired eligibility to be considered for premature release, but eligibility alone does not confer upon them any such right. In the case of Epuru Sudhakar, the SC has held that premature release is a privilege and not an absolute right. Before ordering the premature release of a convict, due procedure is to be followed. In legal and quasi-legal proceedings, the process is as sacrosanct as the substantive right. The Bilkis case was investigated by the CBI and prior consultation by the Gujarat Government with the Central Government was mandatory. In the absence of such consultation, the order suffers fatal procedural infirmity and is liable to be set aside on this ground alone by a competent court.
The release of convicts in the Bilkis case is surrounded by another controversy. Some people are questioning the bona fides of the release order, quoting standards of public morality and prevailing norms of probity. They argue that convicts sentenced for the most heinous offences of gangrape of a woman and the murder of seven persons, including an infant girl, do not deserve sympathy from the State.
Law may be deaf and mute, but it has the capacity to express through those who apply it. What if the law enforcers fail to give expression to law? To ensure that people continue to have faith in the system, the judicial system has to ensure that no victim of crime suffers in wilderness. The Doctrine of Judicial Review forms part of the basic structure of our Constitution. It has always found relevance and expression when executives deviate from the path of law and righteousness.
The sequence of events suggests that justice appears to have played hide and seek with Bilkis. The trial court and the appellate courts have given justice but the State instrumentalities appear to have betrayed her by releasing her tormentors before time. Definitely, her faith in the system might have taken a nosedive. But all is not lost, though her quest for justice appears to have been prolonged. The magnanimity of law lies in patience and it is bound to triumph.
