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Bilkis Bano gang-rape and murder case UPSC NOTE

 SC of India's decision regarding the remission of the 11 convicts

  • The exceptional nature of this injustice is only exemplified by the Supreme Court of India’s judgment in the case delivered by Justices B.V. Nagarathna and Ujjal Bhuyan. 

  • As the decision notes, not only did one of the petitioners commit “fraud” by misleading an earlier Bench of the Court in getting a favourable order, leading ultimately to the release orders, but the Government of Gujarat was equally complicit

  • Despite the law being amply clear in a Constitution Bench decision in Union of India vs V. Sriharan (2015) that the appropriate government to decide a remission application is the State where the convicts are sentenced, the Court notes that the Gujarat government “usurped” power from the Government of Maharashtra.

  • 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). 

  • In effect, the remission orders for the 11 convicts stand cancelled and the men have been directed to go back to the prison within two weeks’ time.

Appropriate government to decide a remission application

  • The current case is one such example of unchecked discretion

  • The Supreme Court in Epuru Sudhakar vs State of Andhra Pradesh (2006) 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 absence of reasons guiding the decisions, there is little scope to challenge them on these grounds. 

  • This concern of non-application of mind is writ large in the case of the 11 convicts in Bilkis Bano’s case because the orders of the Gujarat government for each of them are exact copies

  • 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.

  • Therefore, did not need to go into difficult normative questions. 

  • Certain remission policies of States present the question more starkly

  • 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

  • We will need to confront the issue of whether certain offenders defined by crime categories must be ineligible for remission. 

  • 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.

The concept of remission 

  • At the same time, this case raises important issues on remission and its relationship with punishment that remain unsettled. 

  • 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. 

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

  • Remission is rooted in the logic that, ultimately, prisons are meant to be rehabilitative spaces rather than simply being an instrument to carry out retributive punishment.

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

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

  • 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.

  • Naturally, given the individualised nature of the inquiry, these factors are subjective

  • This makes the reasons guiding these decisions extremely crucial.

  • 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.



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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: Bilkis Bano gang-rape and murder case UPSC NOTE
Bilkis Bano gang-rape and murder case UPSC NOTE
Learnerz IAS | Concept oriented UPSC Classes in Malayalam
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