August 26, 2022
Good morning. In today’s either/view, we discuss whether India’s remission laws need to be changed. We also look at the decline in the population of Gangetic river dolphins in Assam, among other news.
Also, we have launched the Chennai city edition of “The Local Brief” (TLB in short) newsletter – a smart and concise daily guide to the city, sent to your inbox for free. At present, both the Chennai and Bengaluru editions are live. You can subscribe to one or both of the city editions on our website. Kindly subscribe and share your feedback!
📰 FEATURE STORY
Bilkis Bano Case – Are India’s Remission Laws Flawed?
Life imprisonment is no small judgment. The convict(s) must’ve done something quite heinous to attract that ruling. While convicts spend time in jail for their sentence, there’s a chance for them to be furloughed, be out on parole, or just walk out of prison if a court demands so.
Recently, judicial experts turned their attention to the high-profile Bilkis Bano case. As India marked another year of Independence, 11 men sentenced to life in prison for rape and murder were released under the Gujarat government’s remission policy. While this isn’t necessarily a case of justice delayed is justice denied, the issue of remission of convicts is now under the scanner.
How can 11 men sentenced to life in prison just walk out? Are India’s remission laws fundamentally flawed? Or did the Gujarat government have legal rights and reasoning on their side?
Context
Let’s go back to a particularly tumultuous time in India’s history – Gujarat in 2002. Much of what happened then has been mired in controversy. The events in the state have been well-documented. Widespread violence left many dead and injured. We probably don’t know the full extent of it. What followed was publically and legally litigated for years. It’ll likely continue.
One incident was the gang rape of a pregnant Bilkis Yakub Rasool. She was left unconscious in her village. Thirteen of her family members were killed during the violence that swept the state. That included her three-year-old child. In the year that followed, the local police refused to register a case citing a lack of evidence. When she appealed to the Supreme Court, it ordered the CBI to investigate.
In January 2004, the suspects were arrested. Four years later, 13 people were found guilty and 11 received life sentences. The CBI wanted the convicts to be hanged. After appeals for re-examining evidence and witnesses were rejected, the Bombay High Court confirmed the life sentences in December 2016.
In May this year, one of the convicts, who had already served more than 15 years, appealed to the Supreme Court for an early release. The court asked the Gujarat government to see if remission could be applied to their sentences. The state formed a committee headed by Panchmahal’s Collector Sujal Mayatra. The decision was unanimous in favour of remission for the 11 convicts.
The executive can show mercy to convicts in a few ways – reprieve, pardon, commutation, and remission. The remission system is defined under the 1894 Prisons Act. Remission gives the prisoner their freedom. Articles 72 and 161 of the constitution grant the Governor and President of India the power to pardon, suspend, or remit a sentence. The issue is that even if criminals are punished, are they to be treated as rational beings?
One point of confusion is what constitutes a life sentence. While you might think the answer is the entirety of a person’s remaining years, some have argued it to be 14 years. Additionally, there’s confusion on how states calculate remission. As constitutional law teacher Anup Surendranath explained, some prison manuals take 14 or 20 years. Then, they begin to deduct two days per month.
There’s certainly been a lot of criticism about how this unfolded, culminating in the accused being garlanded and welcomed back with open arms.
The issue now is how the criminal justice system uses punishment. Is it merely to act as a deterrent? Or is punishment some sort of penance to persuade and reform offenders?
VIEW: Remission is a legal right
Coming to the legal aspects, as Arindam Bharadwaj explained, the remission system is an integral part of the reformation principle of a criminal justice system. He cited Kehar Singh v Union of India from 1989, where it was observed that the courts couldn’t deny a prisoner the right to be considered for the remission of their sentence.
When the apex court admitted the convict’s plea, it asked the Gujarat government to study the 1992 policy that stated the early release of life convicts for those who on or after 1978 have served 14 years of imprisonment. The state said the policy doesn’t explicitly define the nature of the crime to be considered. The state government has defended the decision saying it was by the book.
According to the state, the committee considered their good behaviour and age. They also said some of the convicts had already served 18 years. One of the members of the committee said remission, in this case, can’t be compared to pending applications like the one for the Sabarmati train carnage at Godhra station. They said the station incident was premeditated by banned organisations.
COUNTERVIEW: Deeply flawed legalese
The central issue in the convicts walking free is the kind of message this sends. According to human rights lawyer Indira Jaising, the BJP government in Gujarat is condoning a crime against humanity by mass murderers. In her column, Jaising explained why the case couldn’t be seen in isolation. It was part of crimes against an entire community.
Given how different courts have interpreted the law, the Supreme Court should lay down the norms for remission. The decision by the Gujarat government should come under judicial review. Why? Because the state made the decision without consulting the Centre. That’s outlined in Section 435 of the Code of Criminal Procedure. However, the law itself needs to be made clear. It’s vague on which is the appropriate government to handle the case. Should it have been Gujarat where the crimes took place? Or should it have been Maharashtra, where the trial was transferred to on judicial orders?
The bottom line is that the right to remission isn’t absolute. It should be done on a case-by-case basis. What happened, in this case, is that the way the law has been defined has led to misinterpretation by the committee. The apex court has recognised remission as a prisoner’s right. As Neetika Vishwanath from Project 39A stated, this luxury is denied to an entire class of offenders. Survivors of rape and sexual violence have a hard enough time as it is going through the judicial system. If these 11 men can be set free, what kind of precedence does that set? It’s high time the law is revised.
What’s your opinion on this?
(Only subscribers can participate in polls)
a) India’s remission laws need to be revised.
b) India’s remission laws don’t need to be revised.
🕵️ BEYOND ECHO CHAMBERS
For the Right:
I Am A Secular Indian Muslim. Here’s Why I Stand With Asaduddin Owaisi – And So Should Other Indians
For the Left:
‘Not Improper’- Why SC’s View On ‘Talaq-e-Hasan’ Is Of Significance
🇮🇳 STATE OF THE STATES
11 new hospitals by the end of next year (Delhi) – The state health department aims to add over 10,000 beds by opening 11 new hospitals in the city. Additionally, seven new semi-permanent ICU hospitals are to be opened with 6,838 ICU beds.
Why it matters: Delhi Deputy Chief Minister Manish Sisodia aims to boost the health infrastructure in the city, benefitting lakhs of Delhiites. He also said that the Kejriwal Government pushes for this move with the intention of providing better health facilities for Delhi residents. Officials stated that the construction work for this project would be completed by the end of next year.
Population of Gangetic river dolphins decline (Assam) – Relentless sand mining on the banks has led to the decline of the Dolphin population in the Kulsi river. The Gangetic river dolphin is considered endangered by the International Union of Conservation of Nature (IUCN), although the local community, the Mising people, do not kill them.
Why it matters: The construction of dams in several regions in Assam and Arunachal Pradesh disrupt dolphin habitats and constrict their access to prey. Additionally, these dolphins face a major threat from dams upstream, further threatening their existence. The unregulated mechanized sand mining has led to the drying up of the Kulsi river, leading to a drastic decline in dolphin populations.
Deisel loco manufacturing shed at Tindharia (West Bengal) – In a first for Darjeeling Himalayan Railway (DHR), a narrow gauge diesel locomotive manufacturing shed is going to be introduced at Tindharia Railway by the Northeast Frontier Railway (NFR). Once permission is granted by the Railway Board, construction will commence.
Why it matters: The Division Railway Manager of NFR said that the summer season saw a huge rush of tourists on the DHR train, but the number of engines is not enough. The proposal for manufacturing a locomotive diesel shed will overcome this obstacle.
Luxury car sales skyrocket (Gujarat) – Gujarat witnessed a record high in luxury car sales post the Covid lockdown starting from April 2021. The fiscal year of 2020-21 saw the sale of 1,786 luxury cars while this number rose to 2,500 in 2021-22. This is a 44% increase in sales of luxury cars.
Why it matters: Luxury car brands such as Mercedes, Volvo, BMW, Audi, Skoda, Mini Cooper and Ferrari have a vast market in Gujarat. But the trade lag with China impacted the auto sector in between. However, with the winter wedding season coming up, sales are expected to peak again.
Glossary released for LGBTQIA+ community (Tamil Nadu) – For the first time in the country, the Madras High Court has directed the Tamil Nadu government to release a glossary of terms in English and Tamil to be used for members belonging to the LGBTQIA+ community. The Department of Social Welfare and Women Empowerment notified the terms.
Why it matters: An official clarified that this move was made in order to ensure that the terms related to the community were used uniformly when addressing issues related to them, officially and legally. The notification describes terms such as queer, transgender person, gender dysphoria, cisgender, and also expressions such as ‘coming out.’
🔢 KEY NUMBER
70% – A survey among professionals revealed that 70% of respondents want the data protection bill to drop the localization rule.