“It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done,” said Lord Hewart in R v. Sussex justices (1923). The then Chief Justice of England was referring to the appearance of bias in an adjudicatory process. The decision by the Sussex judges was set aside by the King’s Bench for this reason. Incidentally, one may recall that Chief Justice Hewart was also the author of the classic work The New Despotism (1929), which exposed an exalted executive torpedoing rule of law with unbridled power, disregarding the other limbs of the state, namely, the legislature and the court.
One may have to reread Chief Justice Hewart while assessing the ethical content of the remission recently ordered by the state government in the Gujarat gang rape and murder case. Not just the court but also the executive owes a duty to the public at large to show that justice is done and what is done is justice, in the context of remission.
Nobody can have a case where once there is a conviction and imposition of sentence, there should not be a reconsideration of it at any time in future. The law of the land also indicates otherwise. Section 432 of the Criminal Procedure Code (Cr.PC) refers to the power of the government to suspend or remit the sentence. Section 433 of the Cr.PC says that the government can commute a sentence of death for any other punishment. It also says that a sentence of life imprisonment can be commuted for a term not exceeding 14 years or for a fine. It empowers the government to alter a sentence of rigorous imprisonment to one of simple imprisonment.
Section 433A indicates that a minimum of 14 years of imprisonment should be ensured for convicts who could have been sentenced to death and for whom the benefit of commutation is granted. These provisions are in addition to the government’s pardoning power under Articles 72 and 161 of the Constitution of India.
The order of the Gujarat Government is essentially based on a cryptic circular of 1992, which was superseded by Gujarat’s changed policy of 2014, which refers to the Supreme Court directives on remission in a 2012 judgment. The principle that a person could be convicted only if his act is an offence at the time of its commission is well known. This flows from Article 20(1) of the Constitution. In tune with this proposition, the law of remission needs to be conceived. The Supreme Court in the State of Haryana v. Jagdish (2010) said that a request for remission requires consideration based on the policy as on the date of conviction. In the Gujarat episode, the conviction by the trial court occurred in 2008. As such, technically, the old policy, however irrational and unjust it was, would, nevertheless, govern the matter.
Yet, the way in which the convicts in the Gujarat case were freed is disturbing because of its blatant negation of the idea of justice. Merely because the government has the power for remission, it does not follow that the exercise of that power is legal or legitimate in all circumstances. In Swamy Shraddananda (2008), the Supreme Court held that while it can substitute the death sentence with imprisonment for life, taking note of the gravity of the offence in each case, it can also direct that the convict should not be released from prison, till his last breath. Thus, the court indicated that the seriousness of the offence for which one is convicted should be taken into account while deciding his eligibility for remission.
The Gujarat Government’s decision fails to satisfy the parameters for remission laid down by the apex court in Laxman Naskar v. Union of India (2000) as well. The court, in Naskar indicated that whether the crime was merely an individual act or one that affected the society at large ought to be a valid point for consideration.
Other relevant factors could be the convict’s capacity to repeat the crimes and the possibility of recurrence of the crimes. A full Bench of the Kerala High Court, speaking through Justice Jayasankaran Nambiar, in a Suo Motu case (2019), held that premature release of prisoners could not be ordered by disregarding public interest.
The Supreme Court decided the case, Sanaboina Satyanarayana v. Government of Andhra Pradesh (2003), in the context of offences against women. The court said that the benefit of remission could be denied to those who are convicted of offences against women. The court even said those who “violate fundamental values of mankind, society and national interest should not get the undeserved benefit”.
To put it plainly, there is a lack of fairness in the process that led to the Gujarat government’s decision. Its basis, which is the circular of 1992, can hardly pass constitutional muster. The opinion of the victim was never sought before the decision was taken. The cases were not individually examined.
Each person’s conduct in prison and the ‘reformability’ were to be separately assessed.
A general order based on the recommendations of a committee, discarding the specificities of the crime and convicts, has clearly conveyed an unpleasant message.
Therefore, one feels that in a case that shocked the collective conscience of the nation, justice is neither done nor appears to have been done. And this happened at a time when those who fought for justice for the victims of the Gujarat riots were sent to the place where the convicts would have been staying over.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(kaleeswaramraj@gmail.com)
(Tweets @KaleeswaramR)