Bilkis Bano case: Why is remission policy being applied selectively? Supreme Court asks

The Supreme Court on Thursday questioned the Gujarat and Union governments about the selective application of the policy for the remission (pre-mature release) of convicts serving jail terms. [Bilkis Yakub Rasool v. Union of India and ors]..The Court was hearing a batch of pleas challenging the decision of the Gujarat government to grant remission to 11 convicts who had gang-raped Bilkis Bano and murdered her family members during the 2002 Gujarat riots.A bench of Justices BV Nagarathna and Ujjal Bhuyan orally stated that the opportunity to reform and reintegrate into society should be given to every eligible convict."Why is the policy of remission being applied selectively? The opportunity to reintegrate and reform should be given to every convict, not a few. Question is, not en masse, but where eligible, are all life sentence convicts after 14 years being given the benefit of remission?" Justice Nagarathna asked..The Gujarat government had granted remission to the 11 convicts based on a May 2022 judgment of the apex court.The 11 convicts who were set free are Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana.The convicts, who had been sentenced to life imprisonment, were released by the Gujarat government ahead of the assembly polls in the State.This led to the present batch of pleas before the top court challenging the remission.On August 25 last year, the top court sought the response of the Gujarat government on some of the pleas..The bench had earlier this month remarked that an accused in a criminal case has a constitutional right to be reintegrated into society. .Today, Additional Solicitor General (ASG) SV Raju made arguments on behalf of the State of Gujarat. He said that the State government was bound by the effective mandamus issued in a May 2022 Supreme Court ruling that had said that the remission policy applicable to a convict is the policy of the State where the crime is actually committed.In this case, the Gujarat government's remission policy would, therefore, apply."Lordships can disagree or say it (May 2022 judgment) is per incuriam but that will not have the effect of refusal. For the future, it can be overruled by larger bench, but the situation inter-se parties cannot change, it is binding," Raju submitted. The ASG also cited the recent decision in the ED director tenure case, where it was said that an earlier mandamus could not have been avoided.He added that all compliances with the 1992 remission policy of Gujarat (that would be applicable as on the date of the sentence) were done.The ASG then argued on Section 432 (power to suspend or remit sentences) of the Criminal Procedure Code at length. Sub-section 2 of the same says that the opinion of the presiding judge of the court that conducted the trial, may be considered before remission.When asked by the bench why the adverse opinion of the Maharashtra trial court judge (the trial had happened in Maharashtra) was ignored in favour of the opinion of a Godhra judge, the ASG replied,"His (Maharashtra sessions judge) negative opinion is not based on the merits of the case. It was the opinion of the successor, not the one who oversaw trial. His opinion is not on merits, and based on old remission policy. They relied on Maharashtra remission policy. This opinion would be hardly relevant, keeping the 1992 (Gujarat remission) policy in mind."He added that the Maharashtra judge would not be aware of ground realities unlike the Gujarat sessions judge, who knows the condition of jails after visiting the same frequently. "It is not intention of the legislature that a judge with no prior history with case has to give opinion. Person at Godhra would be better than someone in Maharashtra who is not aware of ground realities. This is not a fundamental breach," the ASG contended. A similar argument was on the opinion given by the Central Bureau of Investigation (CBI) against premature release. The ASG contended that an officer in Mumbai would be less aware of the convicts' conduct than a local police official.Further, the ASG pointed out that the petitioners had not challenged the 1992 remission policy of Gujarat, on the basis of which the convicts were released. .The ASG also emphasised that the trial judge, in this case, had chosen not to give the death penalty or specify that the life sentence has to be more than 14 years."Absolute deterrence principles will not apply in case of reformative theory. Person should be given a chance to reform himself after even heinous crime," the ASG said.The hearing will continue on August 24 at 2 pm.