Daily Current Affairs for UPSC CSE
Topics Covered
- Remission
- Ocean Diversity Pact & UNCLOS
- Facts for Prelims
1 . Remission
Context: The Supreme Court has enough grounds in the form of past judgments to examine the Gujarat Government’s premature release of 11 convicts who were sentenced to life imprisonment for the 2002 Bilkis Bano gangrape case.
Background
- Recently, in an unprecedented event, 11 men convicted of rape and murder in the 2002 Bilkis Bano case were released under a remission policy of the state of Gujarat.
- Earlier this year, one of the convicts, Radheshyam Bhagwandas Shah, moved the Supreme Court after his remission plea in the Gujarat HC was dismissed on the grounds that the application should have been filed in Maharashtra where the trial had concluded.
- Seeking a direction to the Gujarat government to consider his plea for premature release under the old remission policy of the Gujarat government, the convict cited a 1992 circular that was quoted in a 2012 Gujarat HC order. It pertained to “the early release of the life convicts who on and after 18.12.1978 have served out 14 clear years imprisonment”. He urged the SC to admit his plea since he had undergone a sentence of more than 15 years without remission, as on April 1, 2022.
- The SC admitted the plea and ruled that it was the Gujarat government that was competent to examine the remission plea since the crime had occurred there. It ruled that after the conclusion of trial and passing of the judgment, all further proceedings have to be considered “in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this court.”
- The apex court also directed Gujarat to consider the application for premature release under the “policy dated 9th July, 1992 which was existing at the time of his conviction”.
- “It has been settled by this Court in State of Haryana vs. Jagdish that the application for grant of premature release will have to be considered based on the policy which stood on the date of conviction,” the SC noted in its judgment.
- Following this, the Gujarat government formed a committee. The panel “unanimously” decided in favour of remission of those convicted and forwarded its recommendations to the State Home Department. After “considering all aspects related to the case”, the State accepted the recommendation and allowed the release.
The power of Remission
- The Constitution of India confers the power to grant pardon, suspend, remit or commute sentences.
- Remission is shortening of a sentence without changing its character. It is not a right but based on executive discretion, as observed by the SC in the State of Haryana vs. Mahender Singh.
Constitutional provisions
- Article 72: Bestows upon the President the power to grant pardons, reprieves or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
- This power is applicable in all cases:
- where the punishment or sentence is by a court-martial,
- where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends,
- where the sentence is a sentence of death.
- Articles 161 of the Constitution: Governors have the power to pardon, suspend, remit, or commute a sentence passed by the courts.
Statutory provisions
- The Prison Act of 1894 defines remission as the system of “rules for the time being in force regulating the award of marks to, and the consequent shortening of sentences of, prisoners in jail”. It is an outcome of the State’s efforts to reform criminal justice and protect human rights.
- As per law, there are three kinds of remissions — constitutional, statutory and those earned in accordance with jail manuals. While Article 72 of the Constitution empowers the President to grant remission, Article 161 vests similar power with the Governor.
- Meanwhile, provisions under Sections 432 and 433 of the Code of Criminal Procedure (CrPC) lay down rules for the State governments to suspend or remit sentences. Prison is a subject under the State List of the Seventh Schedule of the Constitution, and the management and administration of jails fall under State governments.
- Section 432 empowers the ‘appropriate government’ to suspend or remit the sentence of a prisoner. Section 433A which deals with the power to commute sentences, however, states that a prisoner shall not be released before 14 years of undergoing sentence in the case of two kinds of life convicts. — those found guilty of an offence punishable with death and those whose death sentences were commuted to life imprisonment under Section 433.
- Section 435 states that in certain cases, the States have to act in consultation with the Central government. These include cases investigated by the Delhi Special Police Establishment, or by any agency that has investigated an offence under a Central Act other than the CrPC.
- Before deciding on the remission plea, the appropriate authority “may” also seek the opinion of the presiding judge of the court where the sentence was passed.
- It further clarifies that the expression “appropriate Government” refers to the central government, in cases where the sentence is for an offence or an order has been passed under any law relating to a matter to which the executive power of the Union extends.
- The remission can be cancelled by the governor if any of the conditions imposed are not fulfilled. In this case, the person who was granted remission may, if at large, be arrested by any police officer, without a warrant and remanded to undergo the unexpired portion of the sentence.
Restrictions
- Section 433A provides for restrictions on powers of remission or commutation in certain cases. According to this provision, a person who has been sentenced to life imprisonment for an offence where death is one punishment provided, or where the death sentence has been commuted to life imprisonment, the person will be released only after serving at least fourteen years of imprisonment.
Case Laws
- In D. Krishna Kumar vs State of Telangana, the HC ruled that whenever an application is made for the suspension or remission of a sentence, the “appropriate government may require the presiding judge of the court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion…”
- Appropriate authority issue was dealt with by a constitution bench of the Supreme Court in the case of Union of India vs V Sriharan. The court said that to ascertain which government would be the appropriate government, the sentence imposed by the criminal court under the CrPC or any other law is to be seen. Further, if the sentence imposed is under any of the sections of the IPC for which the executive power of the central government is specifically provided for, under a parliamentary enactment or prescribed in the Constitution itself, it would be the central government. If, under the provisions of the Code the sentence is imposed, within the territorial jurisdiction of the state concerned, then the appropriate government” would be the state government.
Grounds for remission
- States set up a Sentence Review Board to exercise the powers under Section 432 of the CrPC.
- The Supreme Court has held that states cannot exercise the power of remission arbitrarily and must follow due process.
- While the policy varies from state to state, broadly the grounds for remission considered by the Board are the same.
- The seriousness of the crime, the status of the co-accused and conduct in jail are the factors considered for granting remission.
- In ‘Laxman Naskar v. Union of India’ (2000) the SC laid down five grounds on which remission is considered:
- Whether the offence is an individual act of crime that does not affect society;
- Whether there is a chance of the crime being repeated in future;
- Whether the convict has lost the potential to commit the crime;
- Whether any purpose is being served in keeping the convict in prison; and
- Socio-economic conditions of the convict’s family.
- Jail manuals contain rules that allow certain days of remission every month for the good behaviour of convicts.
- Remission days are accounted for those serving fixed sentences while releasing the convict.
- However, convicts serving life sentences are entitled to seek remission only after serving a minimum of 14 years.
- This rule has often led to uncertainty on whether a “life sentence” means 14 years or a sentence unto death, prompting courts in recent times to clarify that “life means the remainder of one’s life”.
Supreme Court judgements on State’s power of Remission
- In April 2022 an apex court Bench said that the State cannot exercise its remission powers arbitrarily.
- State of Haryana vs Raj Kumar: SC observed that the power under Article 161 of the constitution can be exercised by the state governments, not by the Governor on his own. The advice of the appropriate government binds the Head of the State.
- State of Haryana Vs. Mohinder Singh: apex court said that the grant of remission should be informed, fair and reasonable. The court further said the state in the exercise of its executive power of remission must consider each individual’s case, keeping in view the relevant factors. The power of the state to issue general instructions, so that no discrimination is made, is also permissible in law
- Rajan Vs. Home Secretary, Department of Tamil Nadu: the top court held that granting premature release is not a matter of privilege but is the power coupled with duty conferred on the appropriate government. It said that remission should not undermine the nature of the crime committed.
- Laxman Naskar Vs. Union of India: court laid down five questions which should feature in the State’s mind before deciding on remission.
- Union of India Vs. Sriharan @ Murugan: the apex court said the presiding judge’s opinion would shed light on factors like the nature of the crime that was committed, the record of the convicts, their backgrounds and other relevant factors, which would enable the government to take the right decision as to whether or not the sentence should be remitted.
2 . Ocean Diversity pact and UNCLOS
Context: A delegation from India and other member countries of the United Nations will deliberate on an agreement to conserve marine biodiversity in the high seas, namely the oceans that extend beyond countries’ territorial waters.
About the agreement
- The agreement follows a resolution by the UN General Assembly and is expected to be the final in a series set in motion since 2018 to draft an international legally binding instrument under the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
- The high seas comprise nearly 45% of the Earth’s surface.
The need for the Ocean Diversity Pact
- Decide on the rights of exploring companies:
- A key aspect of the agreement is deciding on the rights of companies that undertake exploration for biological resources in the high seas.
- Do they have absolute rights on any discovery or extraction in these regions or should they share their gains, in terms of intellectual property and royalties with an UN-prescribed body.
- Regulating the exploration
- The focus of mining activity in the sea has been for gas hydrates, precious metals and other fossil fuel resources. However, with advances in biotechnology and genetic engineering, several companies see potential in exotic microbes and other organisms of the deep ocean that could be used for drugs and vaccines. Studies on sustainable utilisation of deep-sea bio-resources will be the main focus.
- The ‘blue- economy’ policy of India
- Last year, Union Cabinet approved a ‘Blue Economy’ policy for India, a nearly ₹4,000-crore programme spread over five years.
- This among other things will develop a manned submersible vessel as well as work on “bio-prospecting of deep-sea flora and fauna including microbes”.
The United Nations Convention on the Law of the Sea
- Establishment: The United Nations Convention on the Law of the Sea was adopted in 1982.
- Functions:
- It lays down a comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources.
- It embodies traditional rules for the uses of the oceans and at the same time introduces new legal concepts and regimes and addresses new concerns.
- It also provides the framework for further development of specific areas of the law of the sea.
- Secretariat: The Division for Ocean Affairs and the Law of the Sea (DOALOS) of the Office of Legal Affairs of the United Nations serves as the secretariat of the Convention on the Law of the Sea. It provides information, advice and assistance to States with a view to providing a better understanding of the Convention and the related Agreements. The Division monitors all developments relating to the Convention, and the law of the sea and ocean affairs.
- It reports annually to the General Assembly of the United Nations on those developments.
- It also assists the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea in reviewing such developments.
- The United Nations General Assembly decided to develop an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (UNGA resolution 69/292).
- The convention set the limit of various areas, measured from a carefully defined baseline. The areas are as follows:
- Internal waters
- Covers all water and waterways on the landward side of the baseline.
- The coastal state is free to set laws, regulate the use, and use any resource.
- Foreign vessels have no right of passage within internal waters.
- A vessel in the high seas assumes jurisdiction under the internal laws of its flag State.
- Territorial waters
- Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline, the coastal state is free to set laws, regulate the use, and use any resource.
- Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels, are allowed to maintain postures that would be illegal in territorial waters.
- Fishing, polluting, weapons practice, and spying are not “innocent”, and submarines and other underwater vehicles are required to navigate on the surface and to show their flag.
- Nations can also temporarily suspend innocent passage in specific areas of their territorial seas if doing so is essential for the protection of their security.
- Archipelagic waters
- A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another.
- All waters inside this baseline are designated “Archipelagic Waters”.
- The state has sovereignty over these waters mostly to the extent it has over internal waters, but subject to existing rights including traditional fishing rights of immediately adjacent states.
- Foreign vessels have the right of innocent passage through archipelagic waters, but archipelagic states may limit innocent passage to designated sea lanes.
- Contiguous zone
- Beyond the 12-nautical-mile (22 km) limit, there is a further 12 nautical miles (22 km) from the territorial sea baseline limit, the contiguous zone.
- Here a state can continue to enforce laws in four specific areas (customs, taxation, immigration, and pollution) if the infringement started or is about to occur within the state’s territory or territorial waters.
- Exclusive economic zones (EEZs)
- These extend 200 nmi (370 km; 230 mi) from the baseline.
- Within this area, the coastal nation has sole exploitation rights over all natural resources.
- The EEZs were introduced to halt the increasingly heated clashes overfishing rights, although oil was also becoming important.
- Continental shelf
- The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state’s baseline, whichever is greater.
- Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others.
- Coastal states also have exclusive control over living resources “attached” to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.
- The area outside these areas is referred to as the “high seas” or simply “the Area”
- Internal waters
3 . Facts for Prelims
ARV
Context: Protests by a group of HIV-positive people alleging a shortage of certain antiretroviral (ARV) drugs entered the 30th day with officials from the National Aids Control Organisation (NACO) stating that they had met with the group and assured them of fresh supply of medicines.
About antiretroviral (ARV) drugs
- Antiretroviral therapy (ART) uses a combination of drugs to reduce the amount of HIV in the body.
- When a person takes them consistently, these drugs are very effective at limiting the impact of the virus.
- ART helps keep the body healthy and prevents symptoms from progressing.
- When a person follows this regimen as prescribed, it will also keep them from transmitting the virus to others.
- It is recommended that all people living with HIV should undergo this therapy, regardless of how long they have had the virus or how healthy they are currently.
- Over the past few years, ART has become more potent, less toxic, and easier to use. It creates fewer side effects than it once did, and they are less severe.
- Working of ART:
- HIV is a retrovirus. Antiretroviral therapy combats HIV by lowering the amount of the virus in the body.
- A retrovirus spreads by working its way into the body’s host cells and making copies of itself, which then keep replicating. Over time, the virus can decimate a person’s immune system.
- When someone contracts HIV, it specifically targets the white blood cells known as CD4+ cells.
- These usually help the immune system fight infection and illness.
- In the absence of treatment, the virus would go on to damage and destroy these cells.
- Using ART stops HIV from progressing. It keeps the virus from multiplying, which allows the body to generate more helpful white blood cells.
- Although ART cannot remove HIV from the body, it can keep the immune system strong enough to fend off infections and some HIV-related cancers.
- ART does this by reducing the amount of HIV in the blood to very low levels.
- When the viral load is so low that it is undetectable, it no longer damages the immune system, and there is no risk of spreading the virus to others.
- Most people using antiretroviral drugs reach viral suppression within 6 months.
Aadhaar
Context: The High Court of Karnataka has directed the Unique Identification Authority of India (UIDAI) to furnish information and documents submitted for securing Aadhaar by 12 Bangladesh nationals, some of whom are already convicted in a gang-rape case.
About Aadhaar
- Aadhaar is a 12-digit unique identity number that can be obtained voluntarily by the citizens of India.
- Any individual, irrespective of age and gender, who is a resident of India, may voluntarily enrol to obtain Aadhaar number.
- It can also be obtained by resident foreign nationals who have spent over 182 days in twelve months immediately preceding the date of application for enrolment, based on their biometric and demographic data.
- A person willing to enrol has to provide minimal demographic and biometric information during the enrolment process, which is free of cost.
- An individual needs to enrol for Aadhaar only once and after de-duplication only one Aadhaar shall be generated, as the uniqueness is achieved through the process of demographic and biometric de-duplication
- The data is collected by the Unique Identification Authority of India (UIDAI), a statutory authority established in January 2009 by the Government of India, under the jurisdiction of the Ministry of Electronics and Information Technology, following the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016.
- It is unique and robust enough to eliminate duplicates and fake identities and may be used as a basis/primary identifier to roll out several Government welfares schemes and programmes for effective service delivery thereby promoting transparency and good governance.
- This is the only program of its kind globally, wherein a state-of-the-art digital and online Id is being provided free of cost at such a large scale to people and has the potential to change the way service delivery functions in the country.