BILKIS BANO
1. Context
Recently, The Supreme Court struck down the relief granted by the Gujarat government in August 2022 to 11 men who were sentenced to life for the gangrape of Bilkis Bano and the murder of her family members during the 2002 riots and ordered them to surrender to jail authorities within two weeks.
2. Who is Bilkis Bano?
Bilkis Bano is a survivor of the 2002 Gujarat riots in India. She gained prominence as a symbol of resilience and courage in the face of communal violence. In 2002, during the riots, Bilkis Bano's family was attacked, and she was brutally gang-raped. Several members of her family were also killed.
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Supreme Court verdict in Bilkis Bano case
The Supreme Court of India's verdict in the Bilkis Bano case on January 8th, 2024, was multifaceted and addressed several key aspects
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3. About Gujarat's Remission Policy
Gujarat's remission policy, like those of other Indian states, outlines the process and criteria for granting early release to prisoners serving life sentences.
Types of Remission
- Premature Release: Early release based on good conduct, completing a specific portion of the sentence, or reaching an advanced age.
- Commutation: Reduction in sentence length, usually in extraordinary circumstances like terminal illness or exceptional contributions to society.
Key Points of the Policy
- Minimum Sentence: 14 years of imprisonment before becoming eligible for remission.
- Eligibility Criteria: Good conduct, participation in prison programs, age, and medical conditions.
- Decision-making: The Governor, in consultation with the Home Secretary and a Remission Committee, has the final say.
- Review Process: Remission decisions can be reviewed if new information or concerns arise.
Recent Controversies
- The early release of 11 convicts in the 2002 Bilkis Bano gang rape and murder case sparked outrage. The Supreme Court quashed the release, citing procedural flaws and lack of consultation with the victim.
- Critics argue the policy lacks transparency, with the decision-making process and criteria for granting remission shrouded in secrecy.
- Fears of the policy being misused for political or personal gain, potentially undermining the justice system.
Ongoing Discussions
- Calls for revising the policy to ensure fairness, transparency, and adherence to legal principles are gaining momentum.
- Increasing emphasis on including victims' voices and concerns in the remission process.
- The debate continues how to balance prisoner rehabilitation with ensuring justice for victims and upholding the law's sanctity.
4. About the Rule of law
The Rule of Law is a fundamental principle in governance that emphasizes the equality of all individuals before the law and the consistent application of laws without arbitrary or discriminatory actions. It is a concept that embodies several key principles:
- The Rule of Law asserts that all individuals and entities are subject to the law, regardless of their status or power. It promotes equal treatment and protection under the law for everyone.
- Laws should be clear, accessible, and predictable. Citizens should be able to understand the laws that govern them, and legal outcomes should be reasonably foreseeable.
- The Rule of Law rejects arbitrary or unchecked power. It ensures that decisions and actions by government authorities are based on established laws and procedures, preventing arbitrary or capricious actions.
- The Rule of Law includes the principle of due process, which guarantees that individuals have the right to a fair and impartial legal process. This involves proper notice, the right to be heard, legal representation, and access to a fair and independent judiciary.
- All individuals, including government officials, are accountable under the law. This principle prevents impunity and ensures that those who violate the law are held responsible for their actions.
- The Rule of Law often involves the separation of powers among different branches of government (executive, legislative, and judicial) to prevent concentration of power and abuse.
- The Rule of Law promotes access to justice for all, regardless of economic or social status. This includes ensuring that legal remedies are available and affordable.
- The Rule of Law is closely linked to the protection and promotion of fundamental human rights. Laws and legal processes should respect and uphold human rights principles.
5. What is the right to liberty?
The right to liberty is a fundamental human right that ensures individuals are free from arbitrary or unlawful detention, imprisonment, or restraint. It is a crucial aspect of personal freedom and is recognized in various international human rights instruments and national legal systems.
The right to liberty encompasses several key principles
- Individuals have the right to be free from arbitrary arrest, detention, or imprisonment. Authorities must have legal grounds and follow due process before restricting an individual's liberty.
- The right to liberty includes the presumption of innocence until proven guilty. Individuals should not be deprived of their freedom unless a fair and impartial legal process establishes their guilt.
- The right to liberty often involves the principle of habeas corpus, which safeguards against unlawful or prolonged detention. Habeas corpus allows individuals to challenge the legality of their detention before a court.
- Legal proceedings leading to deprivation of liberty must adhere to due process and procedural fairness. This includes the right to a fair and timely trial, legal representation, and the opportunity to present a defence.
- The right to liberty extends to protection from torture, cruel, inhuman, or degrading treatment or punishment. Detainees are entitled to be treated with dignity and respect for their human rights.
- In certain circumstances, governments may detain individuals for preventive reasons, such as national security concerns. However, any limitations on liberty for preventive purposes must be lawful, necessary, and proportionate to the perceived threat.
- The right to liberty includes the right to personal security, protecting individuals from arbitrary interference with their personal integrity and safety.
- Individuals have the right to control their personal information and to live free from unreasonable surveillance or intrusion into their private lives. This right protects individual autonomy and dignity in the digital age.
- The right to liberty is enshrined in various international human rights instruments, such as the Universal Declaration of Human Rights (Article 3), the International Covenant on Civil and Political Rights (Article 9), and regional conventions like the European Convention on Human Rights (Article 5).
- National legal systems also incorporate these principles to safeguard individuals' freedom and protect against unjust deprivation of liberty.
6. What do you understand by pardon, suspension, respite, remission and commute?
In the context of legal systems, especially criminal justice, these terms all refer to different actions that can modify or end a sentence or punishment imposed on a convicted individual.
Pardon
- A pardon is a formal act by the competent authority (usually the President or Governor) that completely eliminates the legal consequences of a crime. This means the conviction and sentence are erased, and the individual is considered legally innocent.
- A pardoned person regains all civil rights and privileges they may have lost due to the conviction, including the right to vote, hold public office, and own firearms.
- Pardons are typically reserved for exceptional circumstances, such as demonstrating new evidence of innocence, significant rehabilitation, or extraordinary contributions to society.
Suspension
- A suspension temporarily stops the execution of a sentence, but it doesn't erase the conviction. The individual remains technically guilty but is temporarily relieved from the punishment.
- Suspensions can be granted for various reasons, such as allowing the individual to address urgent medical needs, fulfil family obligations, or participate in rehabilitation programs.
- Suspensions are usually for a specific period, after which the sentence resumes unless further action is taken.
Respite
- Similar to a suspension, a respite is a temporary halt to the execution of a sentence, often granted on humanitarian grounds. However, it may be for a shorter duration or with stricter conditions compared to a suspension.
- A respite might be granted to allow a pregnant woman to give birth before serving her sentence or to permit an individual to attend a close family member's funeral.
Remission
- Remission refers to a reduction in the length of a sentence, but it doesn't erase the conviction. The individual remains guilty, but the overall punishment is lessened.
- Remission is often based on factors like good conduct in prison, participation in rehabilitation programs, or reaching an advanced age.
- Remission doesn't necessarily mean complete freedom. The individual may still have to serve a portion of the original sentence.
Commute
- Commutation is the substitution of a lesser punishment for a more severe one. This means the original sentence is replaced with a different form of punishment, typically one considered less harsh.
- A death sentence might be commuted to life imprisonment or a long prison term might be commuted to community service.
- Like pardons, commutations are often reserved for exceptional circumstances or cases involving significant mitigating factors.
7. Remission Laws in India
Understanding remission laws in India requires looking at both central legislation and individual state policies. Here's a breakdown of the key points and considerations:
Central Legislation
- Article 161 empowers the President to grant pardons, remissions, and reprieves of sentences in certain cases. This includes death sentences.
- Section 432 of Code of Criminal Procedure (CrPC), 1973 allows state governments to grant remission of sentences for offences other than those falling under central jurisdiction (like offences against the state, murder, and certain other serious crimes).
State Policies
- Each state has its own remission policy outlining the specific criteria and procedures for granting early release or sentence reduction to prisoners.
- These policies usually consider factors like good conduct, participation in rehabilitation programs, age, medical conditions, and the minimum portion of the sentence served.
- The Gujarat remission policy, for example, has been in the spotlight recently due to controversies surrounding the release of convicts in the Bilkis Bano case.
Eligibility: To be eligible for remission, prisoners must meet specific criteria, usually including:
- Typically, a minimum of 14 years must be served for life sentences, with different periods for shorter sentences.
- Demonstrating positive behaviour and adherence to prison rules.
- Participating in education, vocational training, or other rehabilitation initiatives.
- Factors like advanced age, terminal illness, or significant contributions to society may be considered.
Types of Remission
- Premature Release: Early release from prison after serving a portion of the sentence.
- Commutation: Reduction of the total sentence length.
- Conditional Release: Release before the sentence ends, but with specific conditions (e.g., parole or probation).
Decision-making Process: Remission decisions involve reviewing various factors, including prison reports, recommendations from authorities, and sometimes, victim impact statements. Transparency and fair procedures are crucial to ensure against arbitrary or biased decisions.
Review and Appeal: In most cases, decisions regarding remission can be reviewed or appealed, either administratively or through the courts. This safeguard ensures legal recourse in case of unfair or erroneous decisions.
8. Articles 72 and 161 of the Constitution
Articles 72 and 161 of the Indian Constitution deal with the power of pardon granted to the President and the Governor, respectively. Here's a breakdown of each article:
Article 72 - Power of Pardon of President
- Grants the President the power to pardon, suspend, remit or commute sentences in all cases where the punishment or sentence is by a court-martial, for offences against any law relating to the Union government, and in all cases of death sentences.
- The President can pardon someone convicted by a military court, pardon someone convicted of a crime against the federal government (e.g., treason), or commute a death sentence to life imprisonment.
Article 161 - Power of Pardon of Governor
- Grants the Governor the power to pardon, suspend, remit or commute sentences in all cases where the punishment or sentence is for an offence against any law relating to the matters to which the executive power of the State extends.
- The Governor can pardon someone convicted by a state court for a crime against the state government (e.g., theft), suspend a prison sentence for medical reasons, or reduce a sentence for good conduct.
Key Differences
- The President has broader power, covering national offences and military courts, while the Governor's power is limited to offences within the state.
- The President has exclusive power to grant pardons or commute death sentences.
Similarities
- Both articles grant the power to pardon (completely erase the conviction and sentence), suspend (temporarily stop the execution of the sentence), remit (reduce the sentence length), and commute (substitute a lesser punishment).
- Both powers are discretionary, meaning the President and Governor are not obligated to grant remission in all cases.
- Both powers are subject to judicial review, meaning courts can intervene if they find the exercise of the power to be arbitrary or unreasonable.
Controversies
The use of these powers, particularly in high-profile cases, can be controversial. Concerns include:
- Lack of transparency in the decision-making process.
- Potential for political or personal influence.
- Balancing the need for rehabilitation with public safety and victim concerns.
9. The Way Forward
The Bilkis Bano case highlights the need for transparency, victim participation, and robust legal frameworks in remission processes. Ongoing discussions on reforming remission policies and upholding the rule of law are crucial for ensuring justice and protecting individual rights in India.
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Preliminary Examination: Current events of national and international importance Mains Examination: • General Studies I: Social empowerment, communalism
• General Studies II: Structure, organization and functioning of the Executive and the JudiciaryMinistries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.
• General Studies IV: Public/Civil Service Values and Ethics in Public Administration
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Source: The Indian Express
