13 January 2024 – The Indian Express

Bilkis Bano Case

Prior to this remission order, a division bench of the Supreme Court had ruled that the State of Gujarat was the appropriate government, in accordance with the Code of Criminal Procedure, 1973 (CrPC), authorised to grant the remission.

What is the Bilkis Bano Case’s current issue?

Overview of Collusion and Injustice:

• In the Bilkis Bano case, eleven gang-rape and murder defendants received remission without having to prove their guilt—a “injustice of exceptionalism.”
• The verdict of the Supreme Court exposes complicity in the unlawful remission of debts between the Government of Gujarat, a petitioner, and a previous Bench.

Jurisdiction for Remission Application:

• The Gujarat government illegally usurped power from the Maharashtra government and took control of remission petitions in defiance of a well-established legal precedence.
• The remission orders for the eleven offenders were revoked by the Supreme Court, which ruled that the previous ruling designating Gujarat as the proper government was unlawful.

Accolades for Preserving the Law:

• Praise is bestowed upon the Supreme Court for preserving the rule of law under extraordinary injustices, underscoring the significance of judicial oversight in preserving equality before the law.
• The decision’s forceful tone lays out illegalities and collusion, offering relief to Bilkis Bano in her battle for justice.

The tenacity of Bilkis Bano:

• Given the unsettling festivities that followed the release of the 11 prisoners, Bilkis Bano’s tenacity in seeking justice is recognised and applauded.
• The ruling is viewed as a positive development since it provides Bilkis Bano with comfort and support and acknowledges the work of women’s rights attorneys.

What is the Remission process?

About:

• Remission entails reducing the length of a sentence without changing its original nature, as contrast to furlough and parole.
• A predetermined release date is attached to the remission that has been given; nevertheless, if any restrictions are broken, the entire original sentence would be imposed again.

Harmonising Autonomy and Responsibility:

• Examining the notion of remission, it provides a date of release. However, the offender is subject to terms and restrictions, which are voidable if they are broken.
• If a condition is broken, the remission is cancelled and the offender is required to serve the full length of their original sentence.
• The legal dynamics of remission are shaped by this fine line that separates accountability from freedom.

Context:

The Prison Act of 1894:

• The Prison Act of 1894 established the Remission system, which provides guidelines for grading inmates and reducing their terms of imprisonment.
• Courts, as evidenced in the Kehar Singh vs. Union of India (1989) case, emphasise the necessity of contemplating remission for inmates, underlining the ideals of reformation.

Reformation Principle:

• It is in opposition to the constitutional protections provided by Articles 20 and 21 if there is no prospect for freedom.
• Although there isn’t a basic right to remission for any convicted person, it is regarded lawful to be evaluated for remission in accordance with constitutional protections.
• Executive Authority and Remitted Constitutional Protections:
• As stressed in the State of Haryana v. Mahender Singh (2007) case, the State’s executive power in remission must take particular circumstances and pertinent elements into account.
• The Mahender Singh case highlights the need to strike a balance between constitutional rights and remission.
• While noting the lack of a basic right to remission, courts emphasise the importance of taking each instance individually into account while also taking the legal right into account.

Articles of the Constitution:

• The President may, in accordance with Article 72, pardon, reprieve, respite, or remit penalty, as well as suspend, remit, or commute a person’s sentence.
• Anybody found guilty of any crime may do this in any situation where:
• All situations where the penalty or sentence is administered by a court-martial
• The penalty is imposed for violating any statute pertaining to the executive branch of the Union government, including death penalties.
• Under Article 161, a Governor can award pardons, reprieves, respites or remissions of penalty, or suspend, remit or commute the sentence.
• Anyone found guilty under any legislation on a subject falling under the executive branch of the government may do this.
• The Supreme Court ruled that a state’s governor has the authority to pardon inmates, including those on death row, even before they have completed a minimum of 14 years in prison.
• The President’s pardoning authority under Article 72 is more expansive than the Governor’s pardoning authority under Article 161.

Statutory Remission Authority:

• Remission of prison terms, which allows for the cancellation of all or part of the sentence, is permitted by the Code of Criminal Procedure (CrPC).
• A sentence may be suspended or remitted in whole or in part, with or without restrictions, under Section 432 by the “appropriate government.”
• Section 433 allows the relevant government to commute any sentence to a less severe one.
• State governments have the authority to use this power to order the release of inmates before their sentences are up.

Which notable cases of remission has the Supreme Court cited?

Union of India v. Maru Ram (1980):

• In this instance, the Supreme Court stated that while it is an excellent goal to focus on the criminal’s reformation rather than his incarceration, it is true that there seems to be a contemporary tendency towards imbuing punishment with a reformative theme.

State of West Bengal v. Laxman Naskar (2000):

• In this instance, the SC outlined the following criteria that control the granting of remission:
• Whether the offence is a solitary criminal conduct that has no impact on society as a whole?

Is there a possibility that criminal activity may occur again in the future?

Does the convicted person no longer have the ability to commit crimes?

• The family’s socioeconomic status of the convicted person.

State of Andhra Pradesh v. Epuru Sudhakar (2006):

• The Supreme Court ruled that the following reasons qualify for judicial review of the remission order:
• lack of mental application;
• order is not genuine;
• order has been made based on superfluous or completely unimportant factors;
• pertinent materials that were disregarded;
• order is hampered by arbitrary behaviour.

Sriharan v. Union of India (2015):

The following findings were noted:

• The State in which the criminals were condemned is the appropriate government to decide on a remission request.
• The Gujarat government “usurped” power from the Maharashtra government, the Court observes, while the prisoners received remission.

What Problems Are There When Giving Remission?

Qualification for Remission and Procedure for Application:

• The one-size-fits-all requirement that lifers serve a minimum of 14 years before being allowed to ask for remission puts obstacles in the way of reformative processes.
• A committee evaluates each application on an individual basis taking into account the type of crime, likelihood of recurrence, and socioeconomic circumstances.
• Nothing is said about the makeup of the widely represented committee.

Transparency Deficit in the Remission Process:

• Concerns concerning the abuse of arbitrary power are raised by the opaque nature of the remission committee formation process and the lack of rationale for choices.
• Unchecked discretion is highlighted by the example of the 11 convicts in Bilkis Bano’s case, who received identical directives from the Gujarat government.

Evaluation of Remission Orders by the Court:

• Citing Epuru Sudhakar v. State of Andhra Pradesh (2006) as precedent, the Supreme Court held that non-application of mind instances are the only ones in which judicial review of remission orders is permissible.
• The Bilkis Bano case highlights the issue of non-application of mind, as each inmate received identical directives.

Difficulties with Remission Policies:

• Some Indian states have remission rules that require lengthy jail terms prior to considering remission, or they refuse opportunities to particular groups of offenders.
• Concerns concerning the appropriateness of barring some offenders from receiving remission give rise to a discussion about the relative merits of retributive and conditions-based punishment schemes.

Upcoming Difficulties for the Court:

• Considering state-by-state differences in remission rules, the Supreme Court may encounter difficulties in resolving normative issues.
• Future challenges for the Court are indicated by the necessity to address matters such ensuring equitable compliance with requirements and the eligibility of some offenders for remission.

Way Forward:

• The ruling in the Bilkis Bano case by the Supreme Court is a praiseworthy declaration of the rule of law and a rejection of the administration’s illegalities and collusion. On the other hand, the case also highlights unresolved issues related to remission and exposes the unbridled discretion in the decision-making process.
• The potential for arbitrary power is highlighted by the lack of transparency and rationale behind remission decisions. In light of these challenges to society, the Court may be forced to address normative questions about remission policies and their conformity to justice, rehabilitation, and fairness principles.