Partial justice

KP Singh

Former DGP, Haryana

THE TRIBUNE DEBATE Premature release of convicts

ON the singular ground of jurisdictional incompetence, the Supreme Court has quashed the order of the Gujarat government, whereby 11 life convicts in the Bilkis Bano case (involving gangrape and multiple murders) were granted premature release (PMR). The court also quashed its own order of May 13, 2022 — vide which the state government was asked to consider the case of PMR of these convicts — stating that it had been obtained by the suppression of material facts.

It is imperative to consider the sentiments of the victims and assess the overall impact of premature release on the community before making a decision.

The judgment would go a long way in restoring the sanctity of procedural integrity in governance. However, the authorities which misused their powers in the process of helping the convicts walk free have not been brought to justice.

Section 432(7) of the Criminal Procedure Code (CrPC) — to be replaced by the Bharatiya Nagarik Suraksha Sanhita — clearly provides that the appropriate government to order remission shall be the one where the trial court is located. Accordingly, the Maharashtra authorities, and not the Gujarat government, were competent to commute the sentence of the convicts as they were tried there. It is a mystery why such a simple and unambiguous provision of the law was not noticed by the administrative and legal authorities of Gujarat; responsibility for the lapse on the part of the state apparatus should have been apportioned.

In the case of Maru Ram (1981), the Supreme Court observed that the duty of the courts was to pronounce the sentence, while the manner in which it shall be served fell within the domain of the executive. Accordingly, governments are bestowed with powers to grant PMR under the provisions of the CrPC. Premature release is not meant to overturn the judgment of the court; instead, it serves the purpose of mitigating the punishment.

In the instant case, the SC did not touch upon the nitty-gritty of the clemency powers of governments, stating that it was left open to be raised in any other appropriate case in future. It is being argued that the court missed an opportunity to strike at the root cause of the problem. Critics cite the controversial release of former PM Rajiv Gandhi’s killers and the murderer of G Krishnaiah, an IAS officer of the Bihar cadre, to bring home the point that PMR policies of the states are of British vintage and need immediate review and rationalisation.

The SC has observed that its May 13, 2022, order was procured fraudulently. Presenting wrong facts, that too before the highest court, is a matter of serious concern; allowing such an act to go unpunished sets a wrong precedent. Those who defrauded the apex court should have received exemplary punishment for their acts of omission and commission.

Another stark revelation in the Bilkis case is that all states do not have a well-documented PMR policy, despite the fact that the subject has been dealt with in detail in the Model Prison Manual, 2016, for their guidance. It is clarified that PMR is not an absolute right; it is a concession to be granted by the government keeping in view many factors, including gravity of the offence, public interest, correctional aspects, the conduct of the prisoner inside the jail and the demand of justice.

It is laid down in laws and procedures that premature release is not a mechanical exercise. It is imperative to consider the sentiments of the victims of crime and assess the overall impact of such release on the community before making a decision. Unfortunately, this is not happening and state governments are accused of engaging in a colourable exercise of these powers almost regularly.

The issue of premature release of the offenders in the Bilkis case may go out of sight soon, but not for ever. Since the law mandates for considering the PMR of lifers after they have spent 14 years in jail, in all probability, the convicts would press for their legal entitlements again at an appropriate forum once the dust has settled. In this scenario, it was desirable that the SC should have rationalised the PMR guidelines and issued directives to the Central government to formulate a uniform policy, applicable to all in supersession of previous rules and regulations.

Law is a dynamic concept and it is the responsibility of the legislature and the constitutional courts to make it evolve in accordance with changes in society. Earlier also, when the state governments misused their commutation power under Section 433 of the CrPC, the SC intervened and directed the Central government to amend the law, resulting in the addition of Section 433A to the CrPC in 1978. This amendment aimed to ensure that an offender convicted of a crime entailing death penalty is not released before serving 14 years in prison. When the limit of serving 14 years in prison for lifers to be considered for release was prescribed, the average life span of people in India was 39 years, and 14 years meant around two-third of an adult’s active life. Life expectancy has gone up to 70 years now and a case is certainly made out for upward revision of the 14 years’ limit to at least 25 years.

Governance is all about ensuring that justice triumphs everywhere and at all times. The state apparatus should keep in mind what Justice Krishna Iyer observed in the case of All-India Judges’ Association vs Union of India (1992): “Law is a means to an end and justice is that end. Law and justice are distant neighbours, sometimes even strange hostiles. If law shoots justice, the people shoot down law and lawlessness paralyses development, disrupts order and retards progress.” The politics of appeasement should never be allowed to overshadow governance and the rule of law.

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