Justice for Bilkis Bano, questions on remission 10 january 2024

Justice for Bilkis Bano, questions on remission

While justice has been done in this case, difficult questions on state remission policies remain

हालाँकि इस मामले में न्याय हो चुका है, लेकिन राज्य की छूट नीतियों पर कठिन प्रश्न बने हुए हैं 

 Constitution Bench decision in Union of India vs V. Sriharan (2015)

1  appropriate government to decide a remission application is the State where the convicts are sentenced, the Court notes that the Gujarat government “usurped” शक्ति को हड़प लेना power from the Government of Maharashtra.

2 , the Court declared the earlier two judge Bench decision of the Supreme Court holding the Gujarat government as the appropriate government to grant remission in this case as illegal (per incuriam).

A resilience that prevailed

As a woman and a lawyer, I celebrate this decision. I celebrate Bilkis Bano’s resilience. I celebrate the force and commitment of India’s leading women’s rights lawyers in this case. It is inspiring.

The concept of remission

let us briefly examine the concept of remission

1 Prison is a State subject. As a result, prison rules of each State identify certain reformative and rehabilitative activities that the prisoners can undertake in order to earn remission in the form of days.

2  The total number of days earned in remission is deducted from the actual sentence imposed by the court. 

3 prisons are meant to be rehabilitative spaces rather than simply being an instrument to carry out retributive punishment.

4 minimum of 14 years in prison 

•  In the  life convicts case , they necessarily have to serve a minimum of 14 years in prison before they can become eligible to apply for remission. 

• but An application does not guarantee remission and the setting off the earned remission against the punishment imposed by the courts.

Supreme Court in Laxman Naskar vs State of West Bengal (2000)  - and rules for convicts 

Each application has to be individually considered by a committee based on factors laid down by the Supreme Court in Laxman Naskar vs State of West Bengal (2000). 

These include examining 

• whether the offence is an individual act of crime without affecting the society at large; 
• 
  
• chance of recurrence of crime; 
• 
  
• whether the convict has lost their potentiality in committing crime; 
• 
  
• whether there is any fruitful purpose of confining the convict any more; 
• 
  
• and socio-economic condition of the convict’s family. 

Naturally, given the individualised nature of the inquiry, these factors are subjective. This makes the reasons guiding these decisions extremely crucial.

lack of transparency 

However, the reality is that there is both a lack of transparency on how these committees are formed to decide individual applications and reasons guiding the decisions. 

Such a state of affairs makes remission a potent site for exercise of arbitrary power.

Unchecked discretion

 Supreme Court in Epuru Sudhakar vs State of Andhra Pradesh (2006)

court has held that judicial review of an order of remission is only available when 

• there is a non-application of mind; 
• 
  
• relevant materials have not been considered, 
• 
  
• the order is mala fide, 
• 
  
• or based on irrelevant considerations or suffers from arbitrariness. 

In the Bilkis Bano case on remission, the Supreme Court found illegalities and injustices that spoke to ‘fraud’ and ‘usurpation of power’ by the government, and, therefore, did not need to go into difficult normative questions.

 

Certain remission policies of States present the question more starkly

1 States in India today have remission policies that completely deny remission opportunities to certain categories of offenders or have significantly longer periods of incarceration for certain offences before consideration of remission.

2 We will need to confront the issue of whether certain offenders defined by crime categories must be ineligible for remission. Or, are we better off focusing on developing appropriate conditions for remission and ensuring that there is meaningful and fair compliance with those conditions?

 3 A blanket denial of remission for crime categories, rather than ensuring effective compliance with remission conditions, takes us towards a punishment framework that is retributive. These are issues that the Court will inevitably be forced to grapple with sooner than later.

Source the hindu