injustice of exceptionalism

Eleven men were sentenced to life imprisonment for the gang-rape of Bilkis Bano (she was pregnant then) in 2008 and the murder of her family members in 2002. Released from a jail in Gujarat this week, The men were sentenced to life imprisonment in 2008 by a special Central Bureau of Investigation court. His release seems unjust and the celebration of his release by some is rebellious. Whereas the law applicable in this case, on the face of it, appears to give Power to Gujarat government to release these menSerious questions have emerged about the validity of the decision. The injustice in this case, however, goes beyond questions of legality or illegality. It goes deep. Therefore, it is important to find the source of this injustice.

discount policy

Like most states, Gujarat’s current exemption policy (a new and revised exemption policy for prisoners was adopted in 2014), makes rape convicts ineligible for premature release. However, the Supreme Court of India had previously ruled that the question of exemption in this case would be governed by the 1992 exemption policy that was in force at the time of conviction, which did not exclude those convicted of rape from executive immunity. Does the injustice in this case lie in the fact that the 1992 policy allowed exemption to this category of offenders? Does justice demand that certain categories of criminals be ineligible for exemptions? Before we get to these questions, a brief explanation on waiver and premature release is needed.

editorial | Exemption without correction: On the release of 11 convicts in the Bilkis Bano case

State governments have prescribed such behaviours/activities which can earn prisoners a few days in the form of remission, which is then commuted from their sentence. For example, if a prisoner earns two years in remission and a court has sentenced them to 10 years, they can effectively leave prison after eight years. This system is enshrined in the Prisons Act, 1894 and rules developed by various states (prisons being a state subject). However, the Code of Criminal Procedure (CrPC) stipulates that life convicts must undergo actual imprisonment of at least 14 years before they can be considered for remission/premature release. Each state has its own process for considering each application for release. There is little transparency on how these decisions are made.

In addition, state governments have also developed rules for premature release which include the power to give effect to the Governor’s exemption powers under Article 161 of the Constitution. Those powers are not governed by the CrPC and are often used to circumvent the requirement of actual imprisonment of a minimum of 14 years in the CrPC. But in this case, the term of imprisonment of all the 11 men was more than 15 years and hence, the calculation of 14 years is irrelevant.

a right

While, of course, questions of sentencing and correction need to be separated, a meaningful criminal justice policy should not adopt guilt-based exclusion when considering remission or premature release with respect to individual individuals. Exemptions are borne by the central purpose of prisons to serve as correctional and rehabilitation sites. The Supreme Court has recognized exemption as an inherent part of a prisoner’s right to life. Contrary to popular belief, exemption is a right and not a privilege granted to the guilty by the state.

However, that broad position on exemption may not address the questions of justice in this case. These 11 people have been treated exceptionally when it has now been denied to a whole section of criminals across the country who carries the smell of injustice. While the 1992 policy did not provide any disqualification for their release, it is not clear why the Gujarat government found these people fit for release, while the 2014 policy excluded the same category of prisoners from any consideration. Is placed. A cardinal rule of justice stands broken—one set of considerations for all those convicted of the same crime, but somehow, a different set of governing considerations for these 11 individuals.

Survivors and Challenges

While there is much concern about the legislature, executive and judiciary moving towards harsher punishment for those convicted of sexual offences, punishment for sexual violence remains a serious concern. There is significant research demonstrating the challenges rape victims face in filing criminal complaints and navigating the justice system.

These difficulties are particularly pronounced and qualitatively different for survivors of caste and religious minorities, against whom rape is used as a weapon of social oppression. One such aspect is intimidation and pressure by criminals, the majority community and often the police to drop criminal charges. The lack of witness protection measures has resulted in many complainants turning away to protect themselves from further harm.

Even for the Bilkis Bano case, not only was it an uphill struggle to initiate criminal proceedings, but she also received multiple death threats throughout the case. She was constantly being moved for her own safety. In the pursuit of justice, survivors of caste and religious minorities bear the brunt of a racist and Islamophobic society, in addition to facing greater challenges in negotiating the criminal justice system than other survivors.

Given this live reality of the survivors, the extravagance in the release of these 11 persons in the Bilkis Bano case becomes even more serious. When the executive has otherwise opted to exclude this category of criminals from the benefit of exemption/premature release, releasing these people from the majority community who gang-raped Bilkis Bano and their families during a communal riot It is an act of exceptionalism to have killed its members. It is this exceptionalism that is at the root of the injustice in this case.

However, our indignation at the grave injustice in this case should not be accompanied by an equal legitimacy of an over-punitive approach to sexual violence. The insurmountable hardships endured by Bilkis Bano to get justice and our collective fear for their safety may now seem insufficient to imprison 15 years. But our dissatisfaction with a broken and discriminatory system cannot be fixed by harsh sentences and practices which, unfortunately, are the only form of justice that a punitive system can provide.

Nitika Vishwanath is with Project 39A, National Law University, Delhi. Research Support by Lakshmi Menon