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Short-sentencing the convicts - Legality and Legitimacy

Amit Jaiswal*

 

It is spirit and not the form of law that keeps the justice alive-

Earl Warren, Chief Justice of the United States (1953-69)

 

            The eleven persons convicted of multiple murders and gang rape walked free out of Godhra sub-jail on 15th day of August, 2022. These persons were convicted of heinous crimes of gang raping a pregnant woman, brutally killing her 3 year old daughter by smashing her head on the ground and 6 other persons on 3rd March, 2002.  The story thereafter is of great struggle to bring the guilty persons to books.  Supreme Court ordered CBI investigation into the crime and the relentless struggle of the victim, with the help of human right groups and her lawyers, bore fruit when on 21st January, 2008 CBI Special Court at Mumbai convicted 11 persons for gang rape, murder and unlawful assembly and sentenced them to life imprisonment.  The case continued its journey through appeals by the convicted persons which finally culminated only in the year 2019 when the Supreme Court upheld the judgment of the CBI special Court and also ordered a compensation of Rs.50 lakhs to be paid to the victim.   The semblance of peace which has come to the victim was short lived as Gujarat government released all eleven convicted persons on the occasion of 75th Independence Day.

            The release came as one of the convicts approached Supreme Court with prayer that he had completed 15 years in prison and his case for pre-mature release be considered as per 1992 policy of the Gujarat Government.  Supreme Court, vide its order dated 13th May, 2022 accepted with petition and issued direction to the Gujarat Government to consider the application of the petitioner and also ordered that in case of any unfavorable order the convict may take remedies as available under the law.

            While convicting and sentencing is a judicial function however executing that sentence and granting remissions is an executive function.  Prison Act, 1894 permits State Governments to make rules for remissions and shortening of sentences and most of the States have their rules for granting remissions.   The power of pre-mature release of the convicts is exercised by the State Governments under Section 432 and 433 of the Code of Criminal Procedure.  Different States have different policies for grant of remission and short sentencing which keep changing with times and views expressed by the Courts from time to time.  However, there was no uniformity in grant of remissions and there were instances where the governments of the day exercised this power in an arbitrary manner and released life convicts who had undergone only 12 years, 10 years and even lesser periods of sentence.  This prompted the central government to introduce Section 433-A (w.e.f. 18.12.1978) which laid down that if a person is undergoing life imprisonment for an offence for which death is one of the punishment then he would not be released unless he has served at least fourteen years of imprisonment.  This resulted in spate of petitions before the Supreme Court challenging the validity of the newly introduced section on a number of grounds.  Supreme Court in its judgment Maru Ram Vs. UOI (1981-1 SCC 107) held the effect of the Section to be prospective in nature and it would not apply to the persons convicted by the Courts of law before 18.12.1978 and thus the persons convicted before 18.12.1978 were saved from rigors of newly introduced Section 433-A of Cr.P.C.

            The aforementioned judgment in Maru Ram case (supra) acted as guiding principle for SC in dealing the question as to which remission/short-sentencing policy should be applied to the convict. Supreme Court has held that the relevant policy for the grant of remission and release would be the policy existing on the date of conviction of the accused [See State of Haryana Vs. Jagdish-2010(4) SCC 216]. Any amendment in the existing remission policy or any new policy subsequent to the date of conviction which has a prejudicial effect on the period of incarceration of the convict has been held to have prospective affect.  Looking from this point of view the decision of Gujarat government to release the convicts as per 1992 policy appears to be legally correct.

                        However, whatever is legal may not necessarily be ethical or right from the societal point of view.  The question arises as to whether the State Government had no option but to release the convicts only because there case was covered by 1992 remission policy?   It is settled law that no convict has a vested right to be considered for pre-mature release and that the power of short sentencing is discretionary.  The Supreme Court, in case of State of Haryana vs. Mahender Singh [2007-13 SCC 606], has held that no convict has fundamental right of remission or shortening of sentence and the a convict has only a legal right to be considered for remission. In paragraph No.38 of its judgment in case of State of Haryana vs. Jagdish (supra) the S.C. has indicated certain safeguards while considering the pre-mature release of the life convicts. One such safeguard is ‘whether the offence was an individual act of crime without affecting the society at large’.  The heinousness of the crime perpetrated by these convicts definitely falls within the four corners of this caveat.  The fundamentals of penology and victimology, particularly in relation to sexual offences, have undergone a sea change in the aftermaths of Nirbhaya rape case.  This being so, the State government would have been well within its rights to decline to exercise the discretion to release the convicts by passing speaking order spelling out the reasons for the same.  In that eventuality the convict would have the option to avail legal remedy as per law in terms of S.C. order dated 13th May, 2022.

            One aspect which remained obscure from the media bites given by the Gujarat Additional Chief Secretary, Home is whether the approval of the Central Government was taken before releasing the convicts.  Section 435 of the Criminal Procedure Code lays down that in cases where the investigation was carried out by the Delhi Special Police Establishment i.e. the C.B.I then the power to remit or commute a sentence shall not be exercised by the State government except after consultation with the Central Government.  Now if there is no compliance of this Section 435 then the release of convicts becomes illegal.  In case such consultation was done and Centre gave its approval then it neither falls within the four corners of general amnesty scheme introduced by the Government of India for release of prisoners as part of celebrations of Azadi ka Amrit Mahotsav which excludes persons convicted of rape crimes nor does it square with the call to ‘respect women’ given by the Prime Minister from the ramparts of Red Fort.   It was certainly not a happy sight to see eleven convicts of a horrendous crime walking out of prison on the historic day of 15th August.  In releasing these life convicts Gujarat government may have followed the letter of the law but not the spirit. 

             

Amit Jaiswal

Advocate

 

 (Writer is a practicing advocate in Punjab & Haryana High Court, Chandigarh, India with 20 years of standing at the Bar practicing largely on Civil and Constitutional side and is a alumni of Panjab University, Chandigarh)

 

 

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