In 2022, the Supreme Court directed the state of Gujarat to consider the petitioner and one of the convicts, Radheshyam Bhagwandas Shah's application for remission, which was based on Gujarat's 1992 remission policy. On August 15 of that year, the Gujarat government granted remission to 11 convicts who in 2002, during the Gujarat riots, had raped Bano, who was five months pregnant at the time.

Dwelling on the topic of remission at length, the SC set out clarificatory guidelines for future remission cases.

Remission allows for the reduction of the period of imprisonment based on numerous factors and considerations. In other words, it means the reduction of a sentence without changing its character. A remission does not mean acquittal, it does not wipe out the offence or conviction. The state has the executive power to remit the sentences of convicts under the Constitution of India and CrPC.

The SC made it clear that the application for remission under Section 432 of the Code of Criminal Procedure (CrPC) could only be made before the state government within whose territorial jurisdiction the applicant was convicted and not before any government within whose territorial jurisdiction the applicant may have been transferred on conviction, or where the offence occurred. In this regard, the Court said, the government of Maharashtra was the appropriate government and not Gujarat, as the case was heard before the special CBI court in Mumbai.

The SC clarified that the remission policy of the appropriate state government at the time of conviction will be applicable. However, if for any reason this policy cannot be made applicable, then a more liberal policy that is in use could apply. The apex court further said in cases of convicts serving life imprisonment or a death sentence, remission cannot be sought before the completion of 14 years of imprisonment.

Prison is a state subject — so each state has its own rules and its own remission policy. The Union has guidelines which act as an advisory. The Supreme Court consolidated these guidelines, reiterating some of the existing precedents, providing clarifications and setting out some new guidelines in the matter of remission. The Court offered further clarification on matters like the meaning of appropriate government, and consideration of remission policy that will be applicable, among other things. The exclusion of the district judge from the Jail Advisory Committee, and delivering speaking orders of remission are other examples of reiterations and clarifications provided by SC.

The SC heavily relied on its 2000 judgement in the case of Laxman Naskar vs. State of West Bengal to highlight the factors that govern the grant of remission. In the 2000 case, the Court had emphasised that a convict did not have an “indefeasible right” to remission except that they be considered for remission. While reiterating that there cannot be any “abuse of direction,” the aspects to be considered include: (i) Whether the offence is an individual act of crime without affecting the society at large; (ii) Whether there is any chance of future recurrence of committing the crime; (iii) Whether the convict has lost his potential to commit the crime; (iv) Whether there is any fruitful purpose of confining this convict any more; and (v) The socio-economic condition of the convict's family.

The Court also stated that each case must be judged based on circumstances and facts as applicable instead of adopting a conservative and blanket approach.

As an essential safeguard, to ensure that the power of remission is not exercised arbitrarily, Section 432(2) of the CrPC requires the appropriate government to seek an opinion from the presiding judge of the court that convicted the offender. This, the two-judge bench deciding the Bilkis Bano remission issue said, is a mandatory requirement. The presiding judge is required to give reasons for whether or not an application for remission should be granted in light of the facts of the case.

The Court further laid down that the district judge should not be a member of the jail advisory committee which considers the application for remission. The district judge, being a judicial officer, may coincidently be the presiding judge.

In one of its guidelines, the SC stated that the appropriate government should pass speaking orders stating clearly the reasons for grant or refusal of remission. And finally, to ensure fairness and legality of the procedure, the SC outlined additional specific tests amongst others for judicial review of the decision when remission is granted. The tests are: “(i) that the order has been passed without application of mind; (ii) that the order is mala fide; (iii) that the order has been passed on extraneous or wholly irrelevant considerations; (iv) that relevant materials have been kept out of consideration; (v) that the order suffers from arbitrariness.”

In the Bilkis Bano case, the Gujarat government’s remission order of August 2022 reflected complete non-application of mind and did not state the reasons for remission, the SC said. All the orders were “stereotyped and cyclostyled”.

While the Court did not deliberate on a reformative approach given the grotesque nature of crime in this case — Bilkis Bano was gangraped and seven members of her family were murdered during the Gujarat riots in 2002 — concerned sections of the criminal justice system need to engage with the questions of transformative justice theory. Can we think beyond incarceration? Can everyone be given a second chance? What about changing the approach of the legal system towards petty crimes which leads to incarceration and overcrowding jails? And finally, what alternative systems of punishment other than the prison system can we come up with? These questions demand critical engagement from both society and the legal system.

Prashant Bhaware is a lawyer and researcher based in Bengaluru. The views expressed are personal