Central Idea

• The Supreme Court bench handling petitions related to the early release of convicts in the Bilkis Bano case raised concerns about the selective application of remission policies in Indian jails.
• Justices on the two-judge bench questioned why the policy is not uniformly implemented and sought clarifications from the Additional Solicitor General representing the Gujarat government.

Also read:

What is Bilkis Bano Case?

Bilkis Bano Case and Remission

• Background of the Case: Bilkis Bano was a victim of gangrape during the 2002 riots in Gujarat, where her three-year-old daughter was also killed by a mob. She was pregnant at the time.
• Remission and Release: All 11 convicts in the Bilkis Bano case were granted remission by the Gujarat government, leading to their release on August 15, 2022.
• Justification for Release: The Additional Solicitor General defended the state’s decision, explaining that remission is distinct from sentencing and that guidelines are being considered to address concerns about its application.

Inquiry into Remission Policy Application

• Selective Implementation Query: The Supreme Court inquired why the policy of remission, aimed at granting convicts early release, is applied selectively across jails and states.
• Overcrowding and Undertrials: The court raised concerns about the overcrowding of jails, especially with undertrials, and questioned the reasons behind the policy not being consistently applied.
• Justice Nagarathna’s Query: Justice B V Nagarathna, leading the bench, emphasized that state-wise statistics are needed to understand the extent to which the remission policy is applied and whether every eligible prisoner is given an opportunity to reform.
• Relevance of Rudul Sah Case: Referring to the Rudul Sah case, where an individual remained in jail for 14 years despite acquittal, the court highlighted extreme cases where the prison system failed to provide justice. The court emphasized that fairness should prevail in both conviction and acquittal scenarios.

What is Remission?

• Stay of Execution: Remission involves suspending or postponing the execution of a sentence.
• Reduced Duration: It reduces the sentence’s duration while maintaining its original nature.
• Unchanged Sentence Nature: The sentence’s fundamental characteristics remain intact; only the duration is shortened.
• Release Date Determined: Remission sets a specific date for the prisoner’s release, marking their legal freedom.
• Conditional Release: Any breach of remission conditions cancels it, necessitating the completion of the original sentence.

Constitutional Framework for Remission:

• Prisons as State Subject: Prisons fall under the State List of the Seventh Schedule of the Indian Constitution.
• Pardoning Power: Article 72 (President) and Article 161 (Governor) grant pardoning, suspending, remitting, or commuting powers for sentences issued by courts.

New Norms for Remission:

(A) Eligibility Criteria

• Women and transgender convicts aged 50 and above
• Male convicts aged 60 and above, completing 50% of their sentence (excluding general remission period)
• Physically challenged convicts with 70% or more disability, completing 50% of their sentence
• Terminally ill convicts
• Convicts serving two-thirds (66%) of their sentence
• Indigent prisoners completing their sentence but detained due to unpaid fines
• Offenders aged 18-21 with no criminal involvement, completing 50% of their sentence

(B) Exceptions

• Excluded: Death sentence convicts, life imprisonment convicts, and those convicted under specific acts.
• Prohibited Acts: Terrorism-related offences, acts under anti-terror and security legislation, explosives, national security, official secrets, and anti-hijacking.

Implications and Benefits

• Justice and Equity: The new norms aim to provide justice to certain categories of prisoners and address their specific circumstances.
• Overcrowding Mitigation: By releasing eligible convicts, the policy seeks to alleviate prison overcrowding.
• Reformation Focus: Remission offers prisoners an opportunity to reform, especially those who demonstrate good behaviour or require medical attention.
• Humanitarian Approach: The policy recognizes the needs of the physically challenged, terminally ill, and aged prisoners.
• Respecting Youth: Young offenders with no further criminal engagement are given a chance for early rehabilitation.

Back2Basics: Pardoning Powers in India

• Pardoning powers in India, enshrined in Article 72 for the President and Article 161 for Governors, provide a mechanism for granting leniency, reducing sentences, or offering reprieves to convicted individuals.
• These powers play a crucial role in the justice system, allowing for the reconsideration of punishments in specific cases.

Presidential Pardoning Powers

• Scope and Authority: Article 72 empowers the President to grant pardons, respites, reprieves, or remissions of punishment, or to suspend, remit, or commute sentences.
• Types of Pardoning:

1. Pardon: Complete exoneration, restoring the person’s status as a normal citizen.
2. Commutation: Reducing the severity of punishment, e.g., converting a death penalty to life imprisonment.
3. Reprieve: Delaying execution to allow time for further legal remedies or evidence presentation.
4. Respite: Reducing the punishment’s degree due to specific circumstances.
5. Remission: Altering the punishment’s quantum without changing its nature.

Cases Covered by Article 72

1. Cases tried by court-martial.
2. Cases involving offences under Union’s executive power.
3. Cases with a death sentence.

Governor’s Pardoning Powers

• Governor’s Authority: Article 161 grants the Governor the power to pardon, commute, suspend, or remit sentences.
• Scope and Limitation: Pardoning authority extends to offences within the state’s executive jurisdiction.
• Exclusion: Governors lack the authority to grant pardons in cases of death sentences.

Nature of Pardoning Power

• Presidential Advice: Though not explicitly mentioned in the Constitution, the President exercises pardoning powers based on the Council of Ministers’ advice.
• Governor’s Power: The Governor’s pardoning power is also guided by the principle of seeking advice.
• Judicial Review: The Epuru Sudhakar case highlighted the possibility of limited judicial review over the pardon powers exercised by the President and Governors. This review aims to prevent arbitrariness.
• Judicial Retained Power: Despite these powers vested in the Executive, the judiciary retains a measure of authority for judicial review, ensuring fairness and constitutionality.

Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024

Attend Now