BILKIS BANO CASE

January 9, 2024
Posted by: OptimizeIAS Team
Category: DPN Topics

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BILKIS BANO CASE

Subject : Polity

Section: Judiciary

Context:

THE Supreme Court had struck down the relief granted by the Gujarat government to 11 men who were sentenced to life for the gangrape of Bilkis Bano and murder of her family members during the 2002 riots.

More on news:

A bench of Justice BV Nagarathna and Justice Ujjal Bhuyan said that Gujarat government’s decision to grant remission to convicts was “an instance of usurpation of jurisdiction and of abuse of discretion”
The court said the State had “acted in tandem and was complicit” with the convicts.
The Supreme Court said that Gujarat was not the “appropriate government” to decide on the remission plea of the 11 men convicted for the “grotesque and diabolical crime driven by communal hatred”.

Gujrat Remission policy:

1992 remission policy allowed prisoners who had served a minimum of 14 years to apply for early release.
This policy empowered the state to consider the remaining sentence based on conduct, subject to verification.
However , the Supreme Court invalidated the 1992 policy in 2012.
In response to this , The Gujarat crafted a new policy in 2014, introducing exclusions for specific types of crimes.
Radheshyam Shah sought remission under the 1992 policy, which did not have post-2014 exclusions.

Legal aspects pertaining to Pardoning:

Constitutional provisions:

Under Articles 72 and 161 of the Constitution, the President and Governors have the power to pardon, and to suspend, remit, or commute a sentence passed by the courts.

Code of Criminal Procedure (CrPC):

Chapter XXXII of the CrPC (Sections 432 to 435) outlines the procedures for remission, suspension, and commutation of sentences.
Since prisons is a state subject, state governments have powers under Section 432 of the Code of Criminal Procedure (CrPC) to remit sentences.
States set up a Sentence Review Board to exercise the powers under Section 432 of the CrPC.
Section 433A of the CrPC puts certain restrictions on these powers of remission:
- Where a sentence of imprisonment for life is imposed on conviction of a person for an offense for which death is one of the punishments provided by law or,
- Where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life.

In the above cases, a person shall not be released from prison unless he had served at least fourteen years of imprisonment.

Views of Judiciary:

The court ruled that remission under Section 432 of the CrPC requires obtaining the judge’s opinion and reasons from the convicting or confirming court, allowing only case-specific, not wholesale, decisions.
The Supreme Court has held that states cannot exercise the power of remission arbitrarily, and must follow due process.
In ‘Laxman Naskar v. Union of India’ (2000) the SC laid down five grounds on which remission is considered:

(a) Whether the offense is an individual act of crime that does not affect the society;

(b) Whether there is a chance of the crime being repeated in future;

(c) Whether the convict has lost the potentiality to commit crime;

(d) Whether any purpose is being served in keeping the convict in prison; and

(e) Socio-economic conditions of the convict’s family

Pardoning power of president:

Type	Illustration
Pardon	It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications
Remission	It implies reducing the period of a sentence without changing its character.
Commutation	It denotes the substitution of one form of punishment for a lighter form.
Respite	It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
Reprieve	It implies a stay of the execution of a sentence (especially that of death) for a temporary period.

Difference between pardoning power of president and governor

The President can pardon sentences inflicted by court martial (military courts) while the governor cannot.
The President can pardon death sentences while the governor cannot.

About Parole and Furlough

Parole:

It is a rehabilitative procedure which aims to change the qualities of such people.
It was legalized and enacted under the Prison Act of 1894 and the Prisoner Act of 1900.
In India each state has its own set of parole guidelines.
It is not a right and thus it is given to a prisoner only for a specific reasons such as a death in the family or a wedding of a blood relative

Furlough:

It is given in cases of long-term imprisonment.
The period of furlough granted to a prisoner is treated as remission of his sentence.
It is a matter of right for a prisoner which is to be granted periodically irrespective of any reason.
It will enable the prisoner to retain family and social ties, and to counter the ill-effects of prolonged time spent in prison.

Difference between Parole and Furlough:

The Supreme Court had differentiated between parole and furlough in various judgements such as The State of Maharashtra vs. Suresh Panduram (2006) and State of Haryana and Ors. vs. Mohinder Singh (2000), etc).

Few differences are as follows:

Parole can be awarded in the case of short-term detention, on the other hand furlough is allowed in the case of long-term detention.
Parole lasts for one month, on the other hand furlough lasts for a maximum of 14 days.
Parole is granted by The Divisional Commissioner, on the other hand furlough is granted by Deputy Inspector General Prison .
A specific reason is necessary for parole, on the other hand a furlough is intended to break the monotony of imprisonment.
The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.
Parole can be granted a number of times whereas there is limitation in the case of furlough.