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Supreme justice to Bilkis Bano: Right to liberty vs. Rule of law

10 Jan 2024 Supreme justice to Bilkis Bano: Right to liberty vs. Rule of law

Posted at 12:02h in Daily current-affairs by
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Source – The Hindu and PIB

General Studies: Indian Constitution – Historical Foundations, Constitution – Amendment, Articles 72 and 161 of the Constitution, Section 432, Section 433 (A) of CrPC, Important Provisions and Basic Structure of Indian Constitution, Special Central Bureau of Investigation Court, Life Imprisonment, Laxman Naskar vs Union of India, Exemption of Gujarat State Government – Policy.

Why in discussion / News ?

  • Recently, the Supreme Court of India has canceled the decision of acquittal of 11 convicts in the Bilkis Bano gangrape case. Hearing the case, the Supreme Court said that Bilkis Bano had to approach the Supreme Court four times at different stages to get justice. He said that the Gujarat government worked in connivance with the convicts and passed pardon orders in their favor and in collusion with the convicts gave immunity to the convicts, which was not its jurisdiction. This is very sad and unfortunate for the Indian judicial system. The Supreme Court upheld the earlier orders of the Supreme Court transferring the investigation to CBI and transferring the trial to Mumbai. The apex court has also neutralized the order dated May 13, 2022 of another bench.
  • The Supreme Court had termed the acquittal of all 11 accused of murder and rape in the Bilkis Bano case as ‘Extraordinary injustice’.

Current legal provision in India for granting pardon to a convict after sentencing him by the court:

  • Under Articles 72 and 161 of the Indian Constitution, the President and Governors have the power to pardon, suspend, remit or commute sentences passed by courts.
  • According to the Indian Constitution, prison is a subject of the State List, hence state governments have the power to grant remission of sentence under Section 432 of the Code of Criminal Procedure (CrPC).
  • Section 433(A) of the CrPC in India places certain restrictions on these immunity powers: “Where a person is sentenced to imprisonment for life on conviction of an offense for which death is a punishment provided by law. is a, or where a sentence of death imposed on a person is commuted to imprisonment for life under section 433, such person shall not be released from prison unless he has been sentenced to imprisonment for not less than fourteen years “Has not been given.”
  • Prisoners are often released on anniversaries of prominent leaders and other important occasions.

Uncontrolled conscience:

  • The Supreme Court of India held that the present case is an example of uncontrolled discretion. Additionally, in the case of Eepuru Sudhakar vs. State of Andhra Pradesh (2006), the Supreme Court had held that the judicial review of the order of remission of sentence given by the court to any convict is possible only when he shows his ideological strength there. Please Do not use it.
  • The Supreme Court said in its judgment that – “If violation of law is not the subject of judicial inquiry, then law and talk of law will be like empty words.”
  • Prison in India is a state subject, with each state’s prison rules identifying certain reformative and rehabilitative conditions that prisoners can use to seek remission.
  • The total number of days earned in remission is subtracted from the sentence awarded by the court. At the same time, forgiveness is hidden in the argument that after all, prisons should not be merely a means of retributive punishment but should be replaced by rehabilitation.
  • Even in the case of convicts sentenced to life imprisonment, the convict has to mandatorily spend at least 14 years in prison to apply for remission. Notwithstanding this, any application for remission of any kind does not guarantee, and does not offset, the remission against the sentence decided by the Court.

Important facts related to Bilkis Bano gang rape and murder case:

Filing writ petitions in the Supreme Court :

  • Exoneration and early release of 11 convicts found guilty of heinous crimes committed during the large-scale riots in Gujarat on 28 February 2002 and a few days thereafter in connection with the train burning incident on 27 February 2002 in Godhra, Gujarat State. Writ petitions were filed before the Supreme Court in order to criticize the orders of the State of Gujarat dated August 10, 2022, regarding providing.

Facts mentioned in the writ petition of the Supreme Court :

  • The petition filed in the Supreme Court was related to the brutal gang rape of Bilkis Yaqoob Rasool who was pregnant at that time.
  • It was mentioned in the petition that the petitioner’s mother was gang-raped and murdered, and her cousin sister, who had just given birth to a child, was also gang-raped and murdered. Went.
  • Eight minors, including the two-day-old baby of the petitioner’s cousin sister, were also murdered.
  • The petitioner’s three-year-old daughter was murdered by hitting her head against a stone, her two minor brothers, two minor sisters, her paternal uncle, aunt, maternal uncle and three other cousins were all murdered.
  • On January 21, 2008, a special Central Bureau of Investigation (CBI) court under the Indian Penal Code, 1860 sentenced 11 accused to life imprisonment on the grounds of rape, murder of a pregnant woman and conspiracy to commit unlawful assembly.

Other petitions filed before the court : 

  • Subhashini Ali vs. State of Gujarat (2022), Dr. Meeran Chadha Borwankar vs. State of Gujarat (2002), National Federation of Indian Women (NFIW) vs. State of Gujarat (2022), Mahua Moitra vs. State of Gujarat (2022), Asma Shafiq Shaikh vs. Several petitions were filed in the name of the victim herself against the State (2022) and the Gujarat Government order dated August 10, 2022.

What were the issues involved in the Bilkis Bano gangrape and murder case?

Was the State Government of Gujarat competent to pass the impugned order of avoidance?

  1. Were the orders of avoidance in accordance with the law ?
  2. What were the arguments given by the petitioners ?

Conviction by Maharashtra Court :

  • The petitioners said that once a competent court in the State of Maharashtra has tried and convicted the accused, that State is the ‘proper government’.
  • The orders of remission passed by the State of Gujarat in respect of 11 convicts are without jurisdiction and unauthorized in the State of Gujarat and as such, the remissions passed are liable to be quashed.

Remission Policy 1992:

  • In the present case the ‘appropriate Government’ is the State of Maharashtra, therefore the petitioner submitted that in the Bilkis Bano gangrape and murder case the amnesty policy/remission policy of the State of Maharashtra would be applicable.
  • The remission policy of Gujarat State dated July 9, 1992 in the Bilkis Bano gangrape and murder case is completely unusable and ineffective.
  • The 1992 amnesty policy/remission policy of the state of Gujarat was implemented for remissions granted to the convicts in the Bilkis Bano gangrape and murder case as was the 2014 amnesty policy/remission policy of Gujarat at the time of remission of verdict in the Bilkis Bano gangrape and murder case. Was not implemented.
  • The 1992 Amnesty/Remission Policy of the Gujarat Government did not deprive rape convicts of the benefit of remission.

What was the State of Gujarat’s argument against this main counter-argument?

  • The State of Gujarat in its affidavit submitted that if there is a beneficial policy in place for the convict at the time of consideration of the application for premature release, the convict cannot be deprived of such beneficial policy and judicial review of the order of remission is permissible in law not there.

What is the conclusion of the Supreme Court of India’s decision on Bilkis Bano gangrape and murder ?

  • Responsibility for determining the appropriate and appropriate government:
  • In Bilkis Bano case, if the State of Gujarat had filed an application for review of the said order holding that it was not the “appropriate Government” but the State of Maharashtra was the “appropriate Government”, the subsequent litigation would not have arisen.
  • In the absence of filing any review petition seeking rectification of the order passed by the Supreme Court on May 13, 2022, the State of Gujarat has usurped the power of the State of Maharashtra and passed the impugned order of avoidance, which in the view of the Court are invalid in law.

The decision given by the Supreme Court on May 13, 2022 declared invalid :

  • The Supreme Court of India has had to declare its own decision dated May 13, 2022 invalid because the said order was sought by concealing material facts as well as by misrepresenting the facts and the same was obtained by the Supreme Court fraudulently. I went.
  • Supreme Court’s decision to make Parihar beneficiaries surrender in jail within two weeks:
  • The Supreme Court has directed the Gujarat government to report to the concerned jail authorities within two weeks the beneficiaries of remission in the Bilkis Bano gangrape and murder case in the light of its present judgment.

Download Yojna daily current affairs eng med 10th Jan 2024

 

Practice Questions for Preliminary Exam:

Q. 1. Consider the following statements with reference to the power to pardon, suspend, remit or commute the sentence passed by the courts in India.

  1. The President and Governors in India have the power to pardon, suspend, remit or commute sentences passed by courts.
  2. Jail is a subject under the State List, so state governments have the power to grant remission of sentence under Section 432 of the Code of Criminal Procedure (CrPC).
  3. Prisoners in India are often released on birth anniversaries of prominent leaders and other important occasions.
  4. Where in India the death sentence imposed on a person has been commuted to imprisonment for life under section 433, such person shall not be released from prison unless he has been sentenced to imprisonment for not less than fourteen years.

Which of the above statement / statements is correct?

(A) Only 1, 2 and 3

(B) Only 2, 3 and 4

(C) None of these

(D) All of these

Answer – (D) 

Practice Questions for Main Exam:

Q.1. Premature release of convicted criminals or prisoners in India should be on judicious and lawful grounds, review the statement in the light of commutation of sentence of convicts in Bilkis Bano gangrape and murder case.

 

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