Sentinel on the qui vive
By Kishore Kulkarni
‘Rule of law is antithesis to arbitrariness’ were the words used by Justice H.R.Khanna in his dissenting opinion in the emergency era judgment, A D M Jabalpur Vs Shivkanth Shukla popularly known as Habeas Corpus case. These words have a everlasting impact on the Judiciary and public at large. Everybody, howsoever, high or low, is not above the law. This is Rule of law and any thing which contravenes the rule of law is arbitrary.
Rape is amongst the rare heinous crimes which impacts both society and the victim too, infact the after effects of rape is to extent where, the victim, mostly women, can become mentally vulnerable and psychologically disturbed for a longer period and in some cases permanently. The most notable case of such instance is the Aruna Ramchandra Shanbaug Vs Union of India popularly known as the Euthanasia case. A nurse in a hospital was sexually assaulted by a sweeper and she went to coma because of the tragedy and the Supreme court had to decide as to whether euthanasia (Honour Killing) could be legalised in India. Perhaps, that is not the subject matter of this article.
Recently The Supreme court bench comprising Justice B.V Nagarathna and Justice. Ujjal Bhuyan quashed the order of Gujarat Government which directed the early release of the eleven convicts for the commission of offences under Sections 143, 147, 302, 376(2)(e) and (g) of the Indian Penal Code. Writ petition was filed under Article 32 of the Constitution of India, seeking issuance of a writ, order or direction quashing the Orders dated 10.08.2022 passed by the State of Gujarat to release the convicts pre maturely.
A government can legally remit or suspend the punishment of a convict, this power is vested on the Government by Section 432 of Criminal Procedure Code, 1973 which is now section 473 of the newly enacted Bhartiya Nagarik Suraksha Sanhita of 2023 (BNNS). However the power to remit is the discretion of the appropriate government but having said that, it is to be ensured that the provision is exercised judiciously and only in an appropriate case and moreover this could not and cannot be used as a loophole or abuse the rule of law.
The definition of appropriate Government in Section 473 (7) of BNNS, 2023 clearly indicates that the Government of the State within which the offender is sentenced, is the appropriate Government to pass an order of remission. In the Instant case the question of jurisdiction arose. One of the question was whether the Government of Gujrat had the jurisdiction to exercise the remitting power when the trail of the case was conducted in the state of Maharashtra. The Court held that the Government of State of Gujarat was lacking jurisdiction not only to remit but event to consider the applications for remission. The aspect of competency of the Government of State of Gujarat to pass the orders of remission goes to the root of the matter and the orders of remission are lacking in competency and hence the order was nullified.
The Power to remit a prisoner is a power which need to be exercised for public good and the power to remit is subject to judicial scrutiny. It is true that The President or the Governor of the state can pardon the sentence of a prisoner but it is also true that the power, though discretionary, can be judicially reviewed. Therefore, judicial review of the exercise of the power of pardon by the President or Governor is available in law. That any exercise of public power, including constitutional power, shall not be exercised arbitrarily. Once, Under Article 72 (power to pardon by President) and Article 161 (power to pardon by Governor) a person or group of persons is grated pardon or remitted from punishment, can that order be revoked or taken back and the answer is Yes, It is a well settled principle of law that the order to remit can be withdrawn if there are appropriate reasons to justify the withdrawal.
In the Case of Manu Ram v. Union of India, a judicial review of a presidential order, the constitution bench of the Supreme Court observed that
all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide, and ordinarily guidelines for fair and equal execution are guarantors of valid play of power.
So, The power of government to remit a prisoner cannot and should never be exercised arbitrarily.
It is relevant to understand that when there is a discretionary power there is always a chance of abuse of discretion, namely, usurpation of power. The question of the exercise of discretion and the passing of the orders of remission in this case was, according to court, was an instance of usurpation of power. The investigation and the trail was conducted in the state of Maharashtra. In that case, it was the State of Maharashtra which was the appropriate Government which had to consider the for remission. If the convicts were to be remitted, it ought to be made by the appropriate government herein the Government of Maharashtra.
The soul and basic rule of a democracy is rule of law and it is only the courts which can protect it. The law is supreme to everyone, it governs the entire state, government, the society, individual behaviour and conduct of a person. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law. The Judiciary is the only and ultimate guardian of it. The Apex Court held that to allow the convicts to remain out of jail would be ignorance of rule of law and as a guardian, It cannot go against it. The order to remit the convicts are set aside and further, natural course of adjudication of matter will follow.
As it is said by the great Justice H.R. Khanna, ‘Rule of law is antithesis to arbitrariness’ The instant case is yet another example for those eternal words. Here, in the above case, Rule of law was maintained by the supreme court against the arbitrary release of the Rape Convicts. This step by the apex court has once again proved that is truly sentinel on the qui vive that is, The Supreme Court is undoubtedly the watchful guardian of Fundamental rights. Be it the case of Nilabati behra Vs State of Orissa where the apex court had decided on matter of custodial death and violation of fundamental rights or be it Vishaka Vs State of Rajasthan, where the court came up with guidelines to protect women from sexual harassment or several other landmark cases. The time has proven, like this time, that it is always the court which is a ray of hope for common ordinary citizen of this country.
Appreciated Kishore
ReplyDeleteVery well articulated and interpreted. Good luck.
ReplyDeleteWell done in explaining rules and laws👍
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