Supremacy of law

Rakesh Dwivedi

Senior Advocate, Supreme Court

THE TRIBUNE DEBATE Premature release of convicts

ELEVEN convicts, sentenced to life imprisonment in the Bilkis Bano case — in which a pregnant woman was gangraped and seven of her family members were murdered — were prematurely released by the Gujarat government on August 15, 2022. They had served a sentence of a little over 14 years. The premature release of these prisoners under Section 432 of the Criminal Procedure Code (CrPC) was quashed by the Supreme Court earlier this week and the convicts directed to return to prison. The judgment is of significance as it brings out the nature of consideration that a government must bestow on premature release cases without being influenced by the mere factor of reform. And it also reiterates the availability of judicial review against such orders.

The constitutional prerogative and statutory powers have to be exercised reasonably and without abuse of power.

The crime had been committed in Gujarat, but on the order of the Supreme Court, the trial had been transferred to Maharashtra. The conviction and sentence by the trial court had been upheld by the high court as well as the apex court. Which government could consider the plea for premature release of these convicts? Having examined the provisions of the CrPC, the SC held that the Gujarat government was not competent as the appropriate government under Section 432 would be the one within whose jurisdiction the trial took place. In this case, it was the Maharashtra government which could have considered the plea of the convicts for premature release. This was a major flaw, and as the court said, the case could be decided on this point alone. It went on to notice that a convict had committed fraud by obtaining an order from the SC by suppressing the fact that during earlier proceedings, the court had granted liberty to the accused to approach the Maharashtra government, and that order had become final.

It was also noted that one convict had earlier petitioned the Maharashtra government; during the consideration of the plea, the CBI and the special court had given a report against premature release. The Superintendent of Police and the Collector, too, had declined the release. The SC reiterated the well-settled principle that fraud vitiated court orders, even those of the Supreme Court. This should make litigants wary of obtaining orders through suppression and by misleading courts. The court observed that the government went on to pass the order for premature release despite being aware of the unfair steps taken by the convicts. The court, therefore, declared the order permitting the Gujarat government to deal with the convicts’ release application as null and void. Having set aside the remission order, the court gave liberty to the convicts to apply to the Maharashtra government afresh for premature release.

Considering the heinous crime, the court emphasised two vital aspects having significance during the consideration of the premature release applications. First, the requirement to obtain the views of the trial court, which held the trial and convicted the accused, i.e. the Special Judge, Greater Mumbai, Maharashtra. Following the Constitution Bench judgment in the Nalini Sriharan case (related to former Prime Minister Rajiv Gandhi's assassination), the SC had held that obtaining the trial court’s opinion was mandatory as it was meant to be a check on the government’s powers. The Gujarat government order had been passed without obtaining the opinion of the trial court in Greater Mumbai and was, therefore, vitiated.

The SC did not stop here. It proceeded to explain the manner in which the premature release applications should be considered. They cannot be considered mechanically. The mind must be applied to the facts of the case, including the nature of the crime and its impact on society, including on the victim. The court referred to the case of Ram Chander vs State of Chhattisgarh, in which Justice DY Chandrachud (now the CJI) had set out the following factors:

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 crime.

3) Whether the convict has lost his potentiality in committing crime.

4) Whether there is any fruitful purpose of confining this convict anymore.

5) What is the socio-economic condition of the convict’s family?

The court stated that the power of the government was its exclusive prerogative and the former could not supplant its view. But it could intervene if the power was illegally or arbitrarily exercised, and then it could tell the government to reconsider. In India, the constitutional prerogative and statutory powers have to be exercised reasonably and without abuse of power. The prerogative is not absolute. It’s not a private act of grace. The power must be exercised as per law.

The SC castigated the Gujarat government for being complicit in the matter. Relevant factors were not considered. This was a serious stricture. As per the court, the remission order suffered from ‘non-application of the mind’. It was a ‘stereotyped and cyclostyled’ order and amounted to ‘abuse of discretion’ by the state and an instance of ‘usurpation of power’.

Such cases warrant independent, unbiased consideration, particularly when the crime is horrendous and the release is likely to harm the interests of the victim and society. So, a message has also gone to the Maharashtra government about the manner in which it should consider the applications, if and when these are lodged by the convicts before it.

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