The Supreme Court calls selective remission into doubt

  • The Supreme Court bench hearing petitions in the Bilkis Bano case regarding the early release of convicts expressed concern about the selective implementation of remission procedures in Indian jails.
  • Justices on the two-judge bench questioned why the policy is not being enforced uniformly and requested clarity from the Gujarat government’s Additional Solicitor General.

Case of Bilkis Bano and Remission

  • Background: Bilkis Bano was a victim of gangrape during the Gujarat riots in 2002, during which her three-year-old daughter was also slain by a mob. She was expecting at the time.
  • Remission and Release: The Gujarat government awarded remission to all 11 convicts in the Bilkis Bano case, resulting in their release on August 15, 2022.
  • Release Justification: The state’s decision was defended by the Additional Solicitor General, who explained that remission is distinct from sentence and that guidelines are being explored to address concerns regarding its use.

Inquiry into Policy Remission Application

  • Selective Implementation The Supreme Court questioned why the policy of remission, which allows offenders to be released early, is applied selectively across jails and states.
  • Overcrowding and Undertrials: The court expressed worry over jail overcrowding, particularly with undertrials, and questioned the grounds for the policy’s inconsistent application.
  • Justice Nagarathna’s Query: In leading the bench, Justice B V Nagarathna emphasised the importance of state-level statistics in understanding the extent to which the remission programme is implemented and if every eligible prisoner is given an opportunity to reform.
  • The Importance of the Rudul Sah Case: The court emphasised extreme examples when the prison system failed to serve justice, citing the Rudul Sah case, in which a man remained in jail for 14 years despite acquittal. The court emphasised the importance of fairness in both conviction and acquittal scenarios.

What is Remission?

  • Stay of Execution: Remission refers to the suspension or postponement of the execution of a punishment.
  • Reduced Duration: It shortens the statement while keeping its original meaning.
  • Sentence Nature: The core qualities of the sentence remain unchanged; just the duration is reduced.
  • Remission establishes a precise date for the prisoner’s release, signifying their legal freedom.
  • Conditional Release: Any violation of remission terms voids it, forcing the original sentence to be served.

The Constitutional Framework for Remission:

  • Prisons as a State Subject: Prisons are included in the State List of the Indian Constitution’s Seventh Schedule.
  • Article 72 (President) and Article 161 (Governor) grant pardoning, suspending, remitting, or commuting authority for court-issued punishments.

New Norms for Remission:

(A) Eligibility Criteria

  • Women and transgender inmates over the age of 50
  • Male convicts aged 60 and up who have served half of their sentence (excluding the usual remission period)
  • Physically challenged criminals with 70% or greater impairment who have served 50% of their sentence
  • Convicts who are terminally ill
  • Convicts who have served two-thirds (66%) of their sentence
  • Indigent convicts who have completed their sentences but are being held because of unpaid penalties
  • Offenders aged 18-21 with no criminal history who have served half of their sentence

(B) Exceptions

  • Death sentence criminals, life imprisonment convicts, and those convicted under specified acts are not eligible.
  • Terrorism-related offences, activities in violation of anti-terror and security legislation, explosives, national security, official secrets, and anti-hijacking are all prohibited acts.

Implications and Advantages

  • Justice and equity: The new guidelines seek to deliver justice to certain types of convicts while also addressing their unique situations.
  • Overpopulation Reduction: The policy aims to reduce jail overpopulation by releasing suitable inmates.
  • Focus on Reformation: Remission provides an opportunity for inmates to reform, particularly those who display good behaviour or require medical attention.
  • Humanitarian Approach: The approach takes into account the needs of physically challenged, terminally ill, and elderly prisoners.
  • Respect for Youth: Young offenders who have no further criminal involvement are offered the opportunity for early rehabilitation.
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