Why the Gujarat Government’s remission order in Bilkis Bano case militates against international law?

ON the fourth episode of The Leaflet podcast series, our host V.Venkatesan interviews Professor Saumya Uma, Director, Centre for Women's Rights, Jindal Global Law School.  Dr. Uma teaches and researches at the intersection of gender, human rights and the law.  In particular, she writes on feminist jurisprudence; international criminal justice and its relevance to India; victim and witness protection; and justice and accountability for mass crimes.  

In this episode, Professor Uma explains that under international law, the state is expected to respect, protect and fulfil women's human rights, and to take due diligence in doing so.  Given that the Gujarat government has remitted the life sentences of the 11 convicted persons in the Bilkis Bano case without adequate reasons, it is inconsistent with the principles of international law, she says.  According to her, remission in this case can set a wrong precedent for other cases of sexual violence in contexts of communal attacks.   She is also of the view that it can have a chilling effect on women who may wish to complain of sexual violence and seek recourse from the law, while simultaneously emboldening the perpetrators. 

Are the convicts in Bilkis Bano case not eligible for remission at all on the basis of their potential for reform?  Professor Uma insists that there should be a transparent and intelligible checklist that indicates that reformation has taken place before remission.  State governments, she says, have an executive discretion in the matter of remission, but that discretion needs to be exercised judiciously, and without any discrimination.  "An opaque process, which is contrary to the opinion of the sentencing judge, and which is followed by one of the members of advisory committee saying that they are all Brahmins and are sanskaari, hardly indicates the reformatory potential of the 11 men", she told The Leaflet. 

Professor Uma adds that though in case of remission, there is no legal compulsion to hear the victim's views, the Jail Advisory Board has a duty to hear the views of the victim on the remission, as it is an important aspect of victim's participation and her right to reparations.  While the trial court's opinion must be heard, she says that it cannot be a substitute to that of the victim, several years after the conviction and sentencing is concluded. 

The podcast was recorded on August  23, 2022.

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