“Condemn the sin and not the sinner?” The Gujarat High Court’s order allowing the eleven rapists accused in the Bilkis Bano case[1] to be released early last year was overturned by the Supreme Court yesterday i.e. January 8th, 2024 in its most recent ruling in the writ petition filed by Bilkis Bano. A bench of Justices B. V. Nagarathna and Ujjal Bhuyan confirmed the validity of the plea challenging the premature remission of the eleven prisoners in the Bilkis Bano case, citing the incompetence of the Gujarat administration. The apex court was of the opinion that the exemption order lacked competence and it further said that the criminals can be released only by the state where they are being tried, which is Maharashtra. In this article, we analyse the reformative theory of punishment on the basis of which the said prisoners were released.
Link to the Supreme Court Order dated 8th January, 2024 is provided here: 38741_2022_12_1501_49383_Judgement_08-Jan-2024.pdf (sci.gov.in).
What is the history of the release of the eleven convicts?
A two-judge Gujarat High Court bench requested on May 13th, 2022, that the Gujarat government take into account a single convict’s request for remission under the terms of the 1992 Gujarat Remission policy. The Gujarat government accepted the remission pleas for all 11 of the convicts who had been given life sentences on August 15th, during the festivities of Independence Day. The state government cited the reformative theory of punishment to argue that even those convicted of heinous crimes deserved an opportunity to reform themselves and be reintegrated into society, after demonstrating contrition and serving their time. In addition to arguing that the remission was legal in light of the guidelines prescribed by the Gujarat Remission policy.
Understanding the reformative theory of punishment.
The primary intention of this theory is based on the rehabilitation and reform of offenders as the primary purpose of punishment, rather than retribution or deterrence. The goal is to change the way that offenders behave. This argument is based on the notion that no one is born to be a criminal. The social, economic, and environmental factors produce the criminal. It is thought that offenders can be persuaded to behave properly in society provided they receive the necessary education and training. It has been demonstrated that the reformative philosophy works well with juvenile offenders, however application of this theory to a crime as heinous as the one committed in the Bilkis Bano case remains a debatable issue.
The reformative theory of punishment takes an individualistic approach to every person who has committed a crime. By this theory, ‘offenders are not seen as inherently evil or irredeemable, but rather as individuals who can be reformed and reintegrated into society with appropriate interventions’.
Punishment to be restorative and not a deterrent?
The theory creates stronger links to other fields of political philosophy and ethics and is a fundamental component of the criminal justice system. The practice involves transforming a wrongdoer into a ‘normal’ citizen by reintegrating faith and viewing the person’s character separately from the action he committed. By this method, the ‘criminal’ is also viewed as a patient who needs to be brought back to normalcy and retribution against the offender is not the way rather individualism forms the core of the theory.
According to this concept, most crimes occur as a consequence of a dispute between the criminal’s character and intent. It should be highlighted that one may commit an offence either because the temptation of the aim is larger or because the constraint provided by character is comparatively weak. Punishment, according to reformative theory, is more restorative than a deterrent.
Are there any Indian laws which reflect the ‘Reformative theory of punishment’?
There are already laws in force in India which directly and indirectly have a connection with the reformative theory of punishment. These laws include the Indian constitution and criminal laws such as the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 etc. The reformative theory of punishment is also reflected in the Juvenile Justice (Care and Protection of Children) Act, 2015, which addresses the reform and rehabilitation of juvenile offenders.
To cite a few provisions, Article 72 of the Indian Constitution, 1950 enables the hon’ble President of India to pardon a wrongdoer. The Governor of a particular state can also exercise such powers under Article 161 of the Indian Constitution.
There are also provisions under the Code of Criminal Procedure, 1973 which enable a court of law to provide reformative and rehabilitative services. The Probation of Offenders Act, 1958, specifically covers the release of an offender due to good behaviour under its Section 4.
The Indian Penal Code, 1860 contains sections 54 and 55 that deal with commuting of punishment, or the reduction of a sentence to a lesser degree following an evaluation of the offender.
Conclusion – Reformative theory of punishment
To sum this up, whilst the reformative theory of punishment sounds like a plausible recourse, relying upon the same in a case as heinous as a 5 month old pregnant lady allegedly being gangraped doesn’t add up – especially at this time when even accused persons are kept in custody for years before being examined. Let us not forget that the crime occurred at the time when the victim had to witness her own 3 year old daughter being killed in front of her during the Gujarat riots.
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[1] Bilkis Yakub Rasul Vs. Union of India & Ors., Writ Petition (Crl.) 491 of 2022
