The Hindu Editorial Analysis- 27th December 2022 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

A Dismissed Review Petition, an Egregious Error

Context

Recently, the Gujarat government released 11 convicts who were sentenced to life imprisonment for the heinous murder and gang rape of women during the Gujarat communal riots of 2002.

• The action by the government has received heavy criticism from all sections of society with more than 130 former civil servants writing an open letter to the Chief Justice of India (CJI) against the action and asking for its revocation.
• The case has again highlighted the issues regarding crimes against women in India and prisoner’s conviction remission policies of states.

About the Bilkis Bano Case

• Bilkis Bano is a gangrape survivor of the 2002 riots in Gujarat. Rioters brutally attacked Bilkis and her family, raped the women and killed many of them.
• Her case was taken up by the National Human Rights Commission (NHRC) and Supreme Court. Later, the Supreme Court transferred the investigation to the CBI and the case to Mumbai to facilitate a free and fair trial.
• Eleven men were convicted by the trial court and sentenced to life. The Bombay High Court confirmed their life terms in 2017.
• In 2019, the Supreme Court awarded compensation of Rs 50 lakh to Bilkis — the first such order in a case related to the 2002 riots.

Issues highlighted by the case

(A)Crimes against women

• Crime against women increased 7.3 per cent from 2018 to 2019 says the annual National Crime Record Bureau’s “Crime in India” 2019 report.
• Majority of cases under crime against women under IPC were registered under ‘cruelty by husband or his relatives (30.9%), followed by an assault on women with intent to outrage her modesty (21.8%), kidnapping & abduction of women (17.9%) and ‘rape’ (7.9%).
• UP reported the highest number of crimes against women (59,853), accounting for 14.7 percent of such cases across the country.
• It was followed by Rajasthan (41,550 cases; 10.2 per cent) and Maharashtra (37,144 cases; 9.2 per cent).
• The problem of underestimation of gender-based crime is compounded by the failure of the justice system of the country in securing convictions.

Various types of crimes against women in India

[I] Domestic violence

• Domestic violence is abuse by one partner against another in an intimate relationship such as dating, marriage, cohabitation or a familial relationship.
• It is also categorized as domestic abuse, spousal abuse, battering, family violence, dating abuse and intimate partner violence (IPV).

[II] Killings

•  Female infanticide and sex-selective abortion
  • Female infanticide is the elected killing of a newborn female child or the termination of a female fetus through sex-selective abortion.
  • In India, there is an incentive to have a son, because they offer security to the family in old age and can conduct rituals for deceased parents and ancestors.
  • In contrast, daughters are considered to be a social and economic burden
• Dowry deaths
  • Dowry death is the murder or suicide of a married woman caused by a dispute over her dowry.
  • In some cases, husbands and in-laws will attempt to extort a greater dowry through continuous harassment and torture which sometimes results in the wife committing suicide.
• Honor killings
  • An honor killing is a murder of a family member who has been considered to have brought dishonor and shame upon the family.
  • Examples of reasons for honor killings include the refusal to enter an arranged marriage, committing adultery, choosing a partner that the family disapproves of, and becoming a victim of rape.
  • Village caste councils or khap panchayats in certain regions of India regularly pass death sentences for persons who do not follow their diktats on caste or gotra.
• Witchcraft accusations and related murders
  • Witchcraft is the practice of what the practitioner believes to be magical skills and abilities, and activities such as spells, incantations, and magical rituals.
  • Murders of women accused of witchcraft still occur in India.  Poor women, widows, and women from lower castes are most at risk of such killings.

[III] Sexual Abuse/ Molestation/ Rape

• Rape is one of the most common crimes in India.
• According to the National Crime Records Bureau, one woman is raped every 20 minutes in India.
• In India, marital rape is not a criminal offense.  
• India is one of fifty countries that have not yet outlawed marital rape.

(b) Forced Marriage

1. Girls are vulnerable to being forced into marriage at young ages, suffering from a double vulnerability: both for being a child and for being female.
2. Child brides often do not understand the meaning and responsibilities of marriage.

[IV] Harassment

• Trafficking and forced prostitution
  • Human trafficking, especially of girls and women, often leads to forced prostitution and sexual slavery.
• Online abuse
  • As the internet becomes an increasingly important part of human existence to make their voices heard, a woman’s inability to feel safe online impedes her freedom.
  • Women are regularly subject to online rape threats, online harassment, cyber-stalking, blackmail, trolling, slut-shaming and more.
• Harassment at the workplace
  • The #MeToo movement is aimed at demonstrating how many women have survived sexual assault and harassment, especially in the workplace.
  • Scores of women, many journalists, came out with accounts of sexual harassment at the workplace, mostly comprising of indecent remarks, unwanted touches, demands for sex, and the dissemination of pornography.

• Life imprisonment normally means convicts remain in jail for the whole of their life. However, they can be released by the State and Central governments at some point, but not before they complete 14 years, by remitting the remaining prison term. This act by governments is called remission.
• Article 72  and Article 161 of the Constitution deals with the judicial power of the President and Governor to grant pardon. It also includes the remission of sentences by the two dignitaries.
• Judicial decisions advocate both subjective and objective norms for remission. Courts have ruled that remission should be informed, fair and reasonable, and not arbitrary; that it should not undermine the nature of the crime.
•  In Laxman Naskar vs Union of India (2000), the Supreme Court laid down five considerations: whether the offense is an individual act of crime that does not affect society; whether there is a chance of the crime being repeated in the future; whether the convict has lost the potentiality to commit a crime; whether any purpose is being served in keeping the convict in prison; and socio-economic conditions of the convict’s family.
• However, recently the Supreme Court took notice of the remission issue and referred to a seven-judge bench the issue of whether states can grant the benefit of remission to convicts under the Constitution by laying down a common policy. The bench will take into consideration whether states can use remission powers without consulting the Governor.
• The bench will also visit Section 433-A of CrPC, according to which, a person, serving a life term, cannot be granted remission benefit without completing 14 years in prison.

Remission in this case

• The outcry over the remission granted in this case is largely due to the brutal and horrific nature of the crime. However, lawyers and activists have highlighted possible legal infirmities.
• For one, the remission has been granted by the Gujarat government without consulting the Centre. Under Section 435 of the Code of Criminal Procedure (CrPC), in a case investigated by the CBI, such consultation is mandatory before remission. The Supreme Court has also ruled that ‘consultation’ means ‘concurrence’ in this regard.
• The opinion of the judge who conducted the trial or in charge of the district should be taken too. But in this case, it was not taken.
• Section 432(7) of the CrPC says the appropriate government will be “the State within which the offender is sentenced or the said order is passed”. Thus, in this case, it should be Maharashtra Government.
• Commentators have also pointed out that the current remission policy of the Gujarat Government bars those found guilty of heinous crimes from being given remission. Their release under a 1992 policy (because it was the one prevailing during their conviction) may also be subjected to legal scrutiny.
• The remission policy of states was also brought under the scanner when the Tamil Nadu government passed an order for the remission of the sentence of A.G Perarivalan, a convict in former PM Rajiv Gandhi’s murder case.

• Nirbhaya Fund for projects for the safety and security of women
• One-Stop Centre Scheme to provide integrated support and assistance to women affected by violence, both in private and public spaces under one roof
• Online analytic tool for police called “Investigation Tracking System for Sexual Offences” to monitor and track time-bound investigations in sexual assault cases in accordance with Criminal Law (Amendment) Act 2018.
• National Database on Sexual Offenders (NDSO) to facilitate the investigation and tracking of sexual offenders across the country by law enforcement agencies
• In order to coordinate various initiatives for women safety, MHA has set up a Women Safety Division.

• Gender-based violence, an especially violent crime like rape, is a multifaceted problem.
• To address this, it is essential to tackle various other concurrent issues that act as contributing factors and thus play an equally important role.
• Although the incorporation of stringent laws and stricter punishments are important to deter people from committing such crimes, the solution to this is much more than just promulgation.
• It is important to acknowledge that judicial reform is only one aspect; there is a more humane side to this whole issue.
• For the remission of sentence issue, the state governments must consider the parameters given by Supreme court diligently before granting any remission.