The Gujarat High Court on Friday ruled that suspension, remission and commutation of sentences are executive functions and that the judicial function ends after conviction and awarding sentence.
Justice J.B. Pardiwala while giving a ruling in the high-profile 2003 Bijal Joshi gang rape case, said: “The grant of remission is a matter of policy and it is for the executive branch of the government to decide as to when, to what extent and in what manner remission is to be granted.”
A writ petition filed by the father of one of the five convicted and sentenced to life for being involved in the gang rape of 24-year-old medical student Bijal Joshi. Joshi committed suicide on January 7, 2004 after she was gang-raped and tortured by her boy friend Sajjal Jain and four others after spiking her drink at a hotel during a New Year-eve party in 2003.
Sessions court in 2008 sentenced all the five accused for life and their conviction was upheld by the Gujarat High Court in 2012. There were also six policemen, including an Inspector of Shahibuag Police Station, who were suspended for laxity in the case.
Father of one of the accused, Sugam Jaiswal, approached the high court seeking remission of the life sentence, stating that he had completed 14 years in jail. His prayer was that the state was indecisive on their remission petition.
In his observation, Justice Pardiwala stated that the imprisonment of life in terms of Section 53, read with Section 45 of Penal code, means “the imprisonment for the rest of the life of the convict” or “till the convict breathes his last”.
The court observed that government decision to turn down the remission might be based on many factors, including the impact of remission on the social life and social security at the relevant time.
“An offence punishable under Section 376 IPC is not only an offence against a singular individual but against the collective as it offends the dignity of a woman and creates a terror-trodden atmosphere in the civilized society. Sometimes, liberal delineation with a convict of this nature decreases the faith in the system and a feeling of insensitivity prevails.”
Pardiwala also ruled that the order passed under Article 161 of the Constitution granting remission in favour of a convict undergoing life imprisonment can be challenged before the high court under Article 226 of the Constitution of India by any person aggrieved, if such aggrieved person is able to show that the power had been exercised taking into account the extraneous consideration or was mala fide.
The court also ordered the state government to convey its decision to the petitioner in writing within two months of receipt of its order.