Justice for Bilkis Bano, questions on remission 

1. It found that one of the petitioners had misled a previous bench of the Court to obtain a favourable order regarding the appropriate government for remission. This, the Court termed as a "misrepresentation" that ultimately led to the remission orders.
2. The Court emphasized that according to the 2015 Constitution Bench decision in Union of India vs V. Sriharan, the state where the convicts are sentenced holds the authority to decide remission applications. Therefore, the Gujarat government's action was deemed an "overstepping" of jurisdiction.

2. Supreme Court's Upholding of Justice in Bilkis Bano's Case

• The Supreme Court's commendable stance in the face of the exceptional injustice surrounding Bilkis Bano's struggle is receiving deserved acclaim.
• The recent decision rightfully emphasizes the importance of upholding the rule of law, stating that "rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny."
• The resolute tone of the decision, exposing the illegalities and the collusion between the Gujarat government and the petitioners, is likely to bring a sense of relief to Bilkis Bano in her ongoing fight for justice.
• Justice Nagarathna's strong words serve as a comforting reassurance, particularly considering the unsettling memory of the celebrations that followed the release of the 11 convicts in August 2022.

3. 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. Examining the Dynamics of Remission

Understanding Remission

While the recent case underscores lingering uncertainties about remission and its intricate relationship with punishment, let's take a moment to unravel the concept of remission. Prison administration falls within the purview of individual states. Consequently, each state's prison rules outline specific reformative and rehabilitative activities prisoners can engage in to accrue remission days. The cumulative days earned through remission are then subtracted from the original court-imposed sentence. Remission, fundamentally rooted in the idea that prisons should primarily serve as rehabilitative spaces, aims to transcend mere retributive punishment.

Life Convicts and Remission Eligibility

In the context of life convicts, a mandatory minimum of 14 years must be served in prison before becoming eligible to apply for remission. Importantly, applying does not guarantee remission; rather, it involves a nuanced evaluation by a committee. This committee follows criteria set by the Supreme Court in Laxman Naskar vs State of West Bengal (2000). Criteria include assessing whether the offence is an isolated act with minimal societal impact, the likelihood of crime recurrence, the convict's potentiality to commit further crimes, the purposefulness of continued confinement, and the socio-economic conditions of the convict's family. Given the subjective nature of these factors and the individualized inquiry, the reasons guiding these decisions become paramount.

Challenges in the Remission Process

However, the existing landscape is characterized by a lack of transparency in committee formation and the rationale behind their decisions. This opacity transforms remission into a potential hotbed for the exercise of arbitrary power. Exploring these challenges sheds light on the intricate dynamics at the intersection of remission and punishment.

The recent case vividly exemplifies the perils of unchecked discretion in matters of remission. Adding complexity, the Supreme Court, in Epuru Sudhakar vs State of Andhra Pradesh (2006), stipulated that judicial review of remission orders is limited to instances of non-application of mind, failure to consider relevant materials, mala fide intentions, reliance on irrelevant considerations, or arbitrariness. The absence of transparent reasons guiding decisions leaves little room for challenging them on these grounds. This concern is glaring in the case of the 11 convicts in Bilkis Bano's case, where the Gujarat government's orders for each convict are identical copies.

Addressing Normative Questions

In examining the remission policies of certain states, the Supreme Court unearthed illegalities and injustices, branding them as 'fraud' and 'usurpation of power' by the government. This revelation spared the Court from delving into intricate normative questions. However, various state remission policies pose a stark dilemma, categorically denying remission to specific offender categories or imposing significantly extended incarceration periods for certain offences before remission consideration.

Confronting Key Questions

The broader question emerges: Should certain offenders defined by crime categories be categorically ineligible for remission? Alternatively, is the focus better placed on formulating appropriate remission conditions and ensuring their fair and meaningful enforcement? A wholesale denial of remission based on crime categories, instead of emphasizing effective compliance with remission conditions, leans towards a retributive punishment framework. These are intricate issues that the Court is inevitably poised to grapple with shortly.