📰 The injustice of exceptionalism
It is the exceptionalism in granting the release of 11 individuals that lies at the core of injustice in the Bilkis Bano case
•Eleven men who were sentenced to life imprisonment in 2008 for the gang rape of Bilkis Bano (she was pregnant then) and the murder of her family members in 2002 were released this week from a jail in Gujarat. A Special Central Bureau of Investigation Court had sentenced the men to life imprisonment in 2008. Their release seems unjust and the subsequent celebration of their release by some is revolting. While the applicable law in this case, on the face of it, seems to give the power to the Gujarat government to release these men, serious questions about the legality of the decision have emerged. However, the injustice, in this case, goes beyond questions of legality or illegality. It runs deeper. Therefore, it is crucial to locate the source of this injustice.
Remission policy
•As in most States, Gujarat’s current remission policy (it adopted a new and revised remission policy for prisoners in 2014), makes those convicted of rape ineligible for premature release. However, the Supreme Court of India had earlier ruled that the remission question in this case would be governed by the remission policy of 1992 that was in force at the time of conviction which did not exclude those convicted of rape from executive remission. Is the injustice in this case to be located in the fact that the 1992 policy allowed remission to this category of offenders? Does justice demand that certain categories of offenders be ineligible for remission? Before we get to these questions, a brief explanation on remission and premature release is called for.
•State governments have laid down behaviour/activities that can earn prisoners a certain amount of days as remission, that is then deducted from their sentence. For example, if a prisoner earns two years in remission and a court has sentenced them to 10 years, they can leave prison effectively after eight years. This system is enshrined in the Prisons Act, 1894, and also rules developed by different States (prison is a state subject). However, the Code of Criminal Procedure (CrPC) is clear that life convicts have to undergo a minimum of 14 years of actual imprisonment before they can be considered for remission/premature release. Each State has its own procedure to consider each application for release. There is very little transparency on how these decisions are made.
•Besides this, State governments have also developed premature release rules that include the power to give effect to the Governor’s powers of remission under Article 161 of the Constitution. Those powers are not governed by the CrPC and are often used to bypass the minimum 14 years of actual imprisonment requirement in the CrPC. But in this case, the term of imprisonment of all 11 men was more than 15 years and therefore, the calculation of 14 years is irrelevant.
A right
•While, undoubtedly, questions of punishment and reformation need to be individualised, a meaningful criminal justice policy should never adopt offence-based exclusions when considering remission or premature release with respect to individual persons. Remission is borne out of the central objective of prisons to operate as reformative and rehabilitative spaces. The Supreme Court has recognised remission as an inherent part of a prisoner’s right to life. Contrary to popular conception, remission is a right and not a privilege extended to the convict by the state.
•However, that broader position on remission cannot settle the questions of justice in this case. It is the extraordinary treatment bestowed on these 11 men when it is now denied to an entire class of offenders across the country that carries the stink of injustice. While the policy of 1992 provided no disqualification for their release, it is unclear why the Gujarat government found these men fit for release when it has excluded the very same category of prisoners from any consideration whatsoever under the policy of 2014. A cardinal rule of justice stands broken — one set of considerations for everyone else convicted for the same offence but, somehow, a different set of governance considerations for these 11 individuals.
Survivors and challenges
•While there is much to worry about the legislature, the executive and the judiciary moving towards harsher sentences for those convicted for sexual offences, the impunity for sexual violence remains a grave concern. There is significant research demonstrating the challenges that rape survivors face in filing criminal complaints and navigating the justice system.
•These difficulties are particularly pronounced and qualitatively different for survivors from caste and religious minorities against whom rape is used as a weapon of social oppression. One such aspect is the intimidation and pressure from perpetrators, the majority community, and often the police to drop criminal charges. The lack of witness protection measures results in many complainants turning hostile to protect themselves from more harm.
•For the Bilkis Bano case too, not only was it an uphill struggle to initiate criminal proceedings but it was also accompanied by several death threats throughout the course of her case. She relocated constantly for her safety. In pursuing justice, survivors from caste and religious minorities have to bear the brunt of a casteist and Islamophobic society, apart from facing greater challenges in negotiating the criminal justice system than other survivors do.
•Given this lived reality of survivors, the exceptionalism in granting the release of these 11 individuals in the Bilkis Bano case becomes even starker. When the executive has otherwise made the choice to exclude this category of offenders from the benefit of remission/premature release, releasing these men from the majority community who gang raped Bilkis Bano and murdered her family members during a communal riot is an act of exceptionalism. It is this exceptionalism that lies at the core of injustice in this case.
•However, our rage at the grave injustice, in this case, must not be accompanied by a corresponding legitimisation of overly-punitive approaches to sexual violence. The insurmountable difficulties endured by Bilkis Bano to pursue justice and our collective fear for her safety now may make 15 years of imprisonment seem insufficient. But our dissatisfaction with a broken and discriminatory system cannot be fixed by harsher sentences and practices which is, unfortunately, the only form of justice that a punitive system can offer.
The judiciary’s move to study the issue could impact the economic freedom of States and the ‘Idea of India’
•The issue of ‘freebies’ has bounced back, when the Supreme Court of India on August 3, 2022, recommended constituting an expert committee comprising representatives of the beneficiaries, Union and State governments, the Finance Commission, NITI Aayog and the Reserve Bank of India to study the issue of ‘freebies’.
•The Court seems to toe the line of critics that ‘freebies’ stress States exchequers, drawing them in debt traps. On the other hand, those in favour of freebies argue that in a stratified society where capital in different forms (intellect, wealth, caste) gets accumulated in the hands of a select few, the poor and the marginalised become victimised. Here, ‘social welfare measures’ that are otherwise ridiculed as ‘freebies’ act as a shock absorber.
On ‘Trickle down economics’
•In the famous Reagan tax cuts, or Reaganomics, associated with ‘Trickle down economics’ there was a maximum cut given to higher income earners and corporations in the expectation that any benefit provided at the top would trickle down to the poor in the form of job creation, higher output, and infrastructure development. While ‘trickle down’ yielded some positive results, it also widened inequality, diminished inclusive growth, and was criticised by economists such as Nobel Laureate Joseph E. Stiglitz.
•In India, neo-liberal schemes of the post-1990s such as the Special Economic Zones (SEZs), Software Technology Parks of India (STPI), and Bio Technology Parks (BTP), (where there were incentives in the form of tax holidays, subsidised power, and waiver of stamp duty), were seen as a result of ‘trickle down economics’, including the recent cut in corporate tax from 30% to 18%.
•However, the World Inequality Report 2022 says that the top 1% of India held 22% of the total national income as of 2021, and the top 10% owned 57% of the income. In another instance, a research paper, ‘Wealth Inequality, Class and Caste in India, 1961-2012’, states that India’s upper caste households earned nearly 47% more than the national average annual household income, thus making India one of the most economically and socially stratified countries in the world. Further, 93% of the top corporate board members and 61.8% of micro, small and medium enterprises (MSME) are owned by upper castes (MSME data March 31, 2022) — so, freebies in the form of incentives benefit the upper caste elites.
Differential tax burden
•The Union government seems to rely more on indirect taxes than direct taxes. While direct taxes such as corporate taxes were slashed from 30% to 18%, indirect taxes have gone up manifold between 2014-21 — these include taxes on fuel and food (rice, milk, cereal) on which the poor spend a major portion of their income, imposing a financial burden on the poor, in turn leading to high inflation and resulting in inequality and lower growth.
•States such as Tamil Nadu address this inequality through social welfare measures (derided as freebies). For example, the Tamil Nadu government’s free bus pass for women has not only saved families fuel cost but has also encouraged more women to join the workforce, in turn leading to economically stable families and women’s empowerment. Free mid-day meals (now extended to free breakfast) have encouraged socially backward parents to send their wards to school at least for the meals, resulting in keeping the evil of child labour under control and, more importantly, imparting education. These measures have resulted in a higher graduate enrolment ratio for T.N. (at 52%) which is double the national average at 27% and also higher than that of the United States at 41%.
•A paper published in Oxford University Press’ The Quarterly Journal of Economics (2009) has lauded the introduction of free colour television in villages as it has resulted in a decrease in domestic violence and also enabled women’s empowerment (women, who are largely indoors due to customary practices/household duties, have been able to connect with the outside world through visual media). It has ensured self respect, as women and children are able to watch TV in their houses rather than visit the homes of those who are rich and own TV sets. Further, elitist corporate tax reduction (30% to 18%) has resulted in a revenue loss of ₹1.84 lakh crore to the Union government for 2019-20 and 2020-21; there is an expected loss of ₹1 lakh in 2021-22, surpassing the cost of some of the major freebies put together (free colour TV — ₹750 crore; free bus pass for women — ₹1,250 crore; mid-day meals for children — ₹1,823 crore).
A fiscal federal setup
•India adopts ‘cooperative federalism’ where the Union and State cooperate to legislate and frame policies in their respective domain. Constitution Benches of the Supreme Court have been consistent in their cautioning courts not to embark on policy matters. In R.K. Garg vs Union of India (1981-4SCC 675), and BALCO employees Union vs Union of India (2002 2 SCC 333), the Court held that laws relating to economic policies should be viewed with greater latitude and deference, and that the wisdom of economic policies is not subject to judicial review. In S. Subramaniam Balaji vs State of Tamilnadu (2013 9 SCC 659) while dismissing the challenge to the much discussed free gifts schemes (colour television, mixer grinder, laptops) of the T.N. government, the Court observed that the distribution of gifts relates to implementation of directive principles of state policy.
•The abolition of the Planning Commission in 2014 led to the politicised Finance Commission to become the sole institution for fiscal devolution. This only increased the dependence of States on the Union when it came to fiscal matters, Thus, the committee recommended by the Supreme Court will further accelerate the existing mistrust States have with the Union.
Region-specific steps
•Moreover, in a fiscal federal set up, States or the regions are expected to have autonomy. Social welfare measures (freebies) may differ from State to State or region to region. For example, in the desert regions of Rajasthan it could be free drinking water, in Kerala, it could be fiscal incentives to encourage corporates/entrepreneurs to boost industrial growth, and in T.N., educational/marriage assistance and a free bus pass to help girl empowerment. Thus, it is for the respective legislature/executive to formulate the social welfare measures for that region. By recommending a central committee, the Supreme Court seems to have considered India to be a single administrative unit facing the same set of issues without due consideration of socio-economic diversity. This step would not only be counter productive to the economic freedom of the States but also to the ‘Idea of India’ as a ‘Union of States’ — as highlighted in Article 1 of the Constitution of India.
•Therefore, unless the notion that ‘incentives’ provided to the elites are ‘affirmative economic measures’ while the same when provided to the poor are ‘freebies’ is corrected in the minds of policymakers, adjudicators and elites (both are economic/social welfare interventions in different forms), this asymmetrical conflict will continue to exist.
