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The Hindu Editorial

10-January-2024

1. Justice for Bilkis Bano, questions on remission.

Topic: GS2 – Polity – Judiciary – Functioning
This topic is crucial for UPSC as it involves judicial decisions, legal principles, and social justice issues in criminal remission.
Context:
  • The article discusses the Supreme Court’s judgment on the remission granted to 11 convicts in the Bilkis Bano case.
  • The apex court highlighted illegalities, lack of transparency in remission decisions, and raising questions about the relationship between remission and punishment.
Introduction:
  • Article discusses the Supreme Court’s judgment on the remission granted to 11 gang-rape and murder convicts in the Bilkis Bano case.
  • Describes it as an ‘injustice of exceptionalism’ and highlights the exceptional nature of the injustice.
Judgment and Illegalities:
  • Supreme Court, in a decision by Justices B.V. Nagarathna and Ujjal Bhuyan, declared the remission orders as illegal.
  • Notes one petitioner committed “fraud” by misleading an earlier Bench, and the Gujarat government colluded, “usurping” power from the Government of Maharashtra.
Cancellation of Remission:
  • Earlier two-judge Bench decision holding Gujarat government as the appropriate authority for remission declared illegal (per incuriam).
  • Remission orders for the 11 convicts stand cancelled, and they are directed to return to prison within two weeks.
Praise for Supreme Court:
  • The Supreme Court is lauded for upholding the rule of law and equality before the law.
  • Decision viewed as a soothing balm in Bilkis Bano’s fight for justice.
  • Bilkis Bano’s resilience and the commitment of India’s leading women’s rights lawyers celebrated.
Issues with Remission:
  • Raises concerns about remission and its relationship with punishment, citing lack of transparency and unchecked discretion.
  • Discusses the individualized nature of remission applications and the subjective factors involved.
Unchecked Discretion and Arbitrary Power:
  • Highlights the lack of transparency in the formation of committees deciding remission applications.
  • Points out that unchecked discretion in remission cases can lead to arbitrary exercise of power.
Judicial Review and Concerns:
  • Cites the Supreme Court’s position in Epuru Sudhakar vs State of Andhra Pradesh (2006) on limited grounds for judicial review of remission orders.
  • Expresses concern about non-application of mind, especially evident in the Bilkis Bano case.
Policy Questions on Remission:
  • Raises questions about whether certain offenders should be ineligible for remission based on crime categories.
  • Advocates for focusing on developing appropriate conditions for remission rather than blanket denial based on crime categories.
Conclusion:
  • The Author anticipates that the Court may be forced to grapple with normative questions related to remission policies in the future.
Powers of Remission, Respite, and Pardon in India
Remission:
  • Power granted by the President or Governor to reduce a sentence already imposed by a court.
  • Can apply to all types of sentences, including capital punishment.
  • Can be exercised based on various factors like age, medical condition, exceptional conduct, or to rectify a miscarriage of justice.
Respite:
  • Temporary suspension of a sentence, usually for medical reasons or to allow the convict to attend to urgent personal matters.
  • Granted by the President or Governor for a limited period.
  • During respite, the sentence is not extinguished, and the convict remains under legal custody.
Pardon:
  • Power to completely forgive a convict and wipe out the consequences of the crime.
  • Granted by the President or Governor after the sentence has been served.
  • Removes the legal disabilities arising from the conviction.
  • Can be exercised for various reasons, like extraordinary circumstances, exceptional merit, or to promote public interest.
Important points to note:
  • These powers are discretionary, and there is no legal obligation to grant remission, respite, or pardon.
  • These powers are meant to ensure fairness and justice in the administration of criminal justice.
Practice Question: Examine the significance of judicial scrutiny in cases of remission, citing the Bilkis Bano case and its implications. (150 words/10 m)

2. Why international law matters.

Topic: GS2 – International Relations – Agreements involving India or affecting India’s interests.
Crucial for UPSC as it involves international law, geopolitical conflicts, and the balance between accountability and compliance.
Context:
  • The article discusses the perceived challenges to international law amid Israel’s Gaza war and Russia’s invasion of Ukraine.
  • It argues against declaring the death of international law, emphasizing its significance in holding power accountable and promoting compliance aspirations.
Introduction:
  • Israel’s war in Gaza and Russia’s invasion of Ukraine prompt concerns about the death of international law.
Defending International Law:
  • Despite failures, declaring the death of international law is a mistake.
  • Structural deficiencies and imperial history acknowledged, but international law remains significant. 
Beyond Compliance:
  • Critics focus on poor compliance but argue for a broader understanding of international law’s normative effects.
  • Howse and Teitel’s viewpoint: Shift benchmarks from general compliance; international law’s normative interaction matters.
Transnational Legal Process:
  • Harold Hongju Koh’s argument: States comply through a complex transnational legal process.
  • Engagement triggers institutional interactions leading to the debate, interpretation, and internalization of global norms. 
Accountability in International Law:
  • Monica Hakimi’s perspective: International law’s significance lies in its ability to hold those with public power accountable.
  • Accountability not just about punishing non-compliance but involves questioning and making a case against illegitimate actions.
Case Example – South Africa and ICJ:
  • South Africa’s move to the ICJ in December, alleging Israel’s violation of the Genocide Convention in Gaza.
  • Demonstrates the accountability aspect of international law.
Universal Aspiration towards Compliance:
  • Nanjala Nyabola’s view: Despite universal non-compliance, there is a universal aspiration towards compliance.
  • International law should be molded to hold the powerful accountable and constrain expansionist tendencies. 
Conclusion:
  • We should acknowledge imperfections in international law and its structures.
  • Emphasising the need for more, not less, fair international law to restrain expansionist and illiberal actions.
Practice Question: Discuss the role of international law in holding states accountable during geopolitical conflicts, citing recent examples. (150 words/10 m)

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