Release of Bilkis Bano Case convicts: Conflicting remission policies raise difficult questions

On Monday, August 15, the Gujarat government released 11 convicts who had been sentenced to life imprisonment in the Bilkis Bano gangrape and murder case during the 2002 Gujarat communal riots. The convicts walked out of the Godhra sub-jail after the Gujarat government approved their application for remission.

Following their conviction on January 21, 2008 by a special Central Bureau of Investigation (CBI) court in Mumbai, the 11 men were sentenced to life imprisonment on charges of gang rape and the murder of seven members of Bilkis Bano’s family – including a three-year-old. The Bombay high court upheld the conviction, and the convicts had served over 15 years in jail when one of them, Radheshyam Shah, approached the Supreme Court seeking premature release.

In May 2022, the top court directed the government of Gujarat to look into the question of remission since the crime was committed in the state and post-trial proceedings such as remission should be considered in terms of the relevant state’s policy. According to The Hindu, this 1992 remission policy was quoted in a 2012 order of the Gujarat high court, and “pertains to the early release of the life convicts who, on and after 18.12.1978, have served out 14 clear years imprisonment”.

The convict, Shah, had at the time of his petition undergone imprisonment for 15 years and 4 months as of April 1, 2022. Although the Gujarat government told the apex court that in this case, the appropriate authorities would be the state of Maharashtra since the trial was concluded there, the top court said that since the crime was committed in Gujarat, its remission policy would be valid.

A bench headed by Justice Ajay Rastogi allowed the accused’s application for the state government to consider his release as per the Gujarat remission policy as on July 9, 1992. Holding that this was the policy in effect at the time of Shah’s and the other accused’s conviction, the court observed, “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 on the basis of the policy which stood on the date of conviction.”

Following this order, a committee headed by the Panchmahals collector, Sujal Mayatra, was formed. The committee thereafter took a unanimous decision to release all 11 convicts. The state government approved this decision.

Since law and order, police and prisons are state subjects as per the Seventh Schedule of the Indian constitution, the Code of Criminal Procedure (CrPC) under section 432 grants state governments the power to remit sentences. However, under section 435 of the CrPC, consent of the Union government is a necessary prerequisite for the premature release of the prisoners, particularly in cases where the offence was investigated by a central agency such as the CBI. This was also upheld by the Delhi high court in a 2021 judgment which said that the Union government’s consent was mandatory before proceeding with remission under section 435 of the CrPC.

Earlier in June this year, the Union home ministry had issued guidelines to states pertaining to the release of convicted prisoners under a special policy formulated as part of ‘Azadi Ka Amrit Mahotsav’ or the celebration of 75 years of independence. As per the said guidelines, special remission was to be granted to prisoners on August 15, 2022, January 26, 2023 (Republic Day) and August 15, 2023. Notably, persons sentenced to life imprisonment and rape convicts are not entitled to be prematurely released as per these guidelines.

Legal experts have pointed out how the conflicting remission policies pose several difficult questions.

Shobha Gupta, the lawyer for Bilkis Bano, referred to a 2005 judgement by a five-judge bench of the Supreme Court, which said that life imprisonment means “until the last breath”. “Further, there are two categories of remissions. With regard to heinous crimes, remission is not a matter of right and secondly, there are factors to be looked into such as the crime, the nature of crime and so on,” she said. Gupta also informed this reporter that she was not able to get a copy of the 1992 notice.

Pointing to the guidelines laid down in the 2008 judgment of the Swami Shraddananda vs State of Karnataka, Bano’s lawyer also said that the Supreme Court had then clearly said that the nature of crime is a factor to be looked into. Stressing the need for remission to focus on the impact on victims, she added, “The concerns and safety of the victim is one of the factors to be looked into. Remission is a favour to be earned by the accused, the question is, is the victim not a person to be called upon and notice served to her? If the top court itself in its order awarding Bilkis compensation has noted that she and her husband have been running from pillar to post seeking safety, then this shows how vulnerable they are.”

Senior advocate Mihir Desai also emphasised the conflict between the Gujarat government’s and Union government’s remission policies, saying that under section 435 of the CrPC, “they would have to consult the Union government. We don’t know whether this was done. It should have been.” He added that if consulted, the Union government should not have given consent “as their policy does not allow rapists to be given remission. In any event, it is crucial in all matters of remission to take views of families of victims.”

Speaking on the need for the state policy to consider a change, Justice Anjana Prakash said that though she found from the Gujarat policy that it does bar remissions in several offences of serious nature, it did not do so in cases of rape. She said she considers rape “a very serious offence”.

“Now that this omission has come to light, maybe the Gujarat government can petition to include it as well,” she said.

Senior lawyer Nitya Ramakrishnan further said that the power of premature release given to the executive was “meant to ensure an element of human or social justice, that may evade the letter of the law or the judicial process”.

She added that despite this, “We see that state governments routinely refuse a premature release, even in a crime done without premeditation, or where there is only a single act or a single victim. The release of the Bilkis convicts with such promptness in a case of gangrape and 7 murders – that is, multiple premeditated crimes and that too during communal riots – therefore shocks the people’s conscience.”

Ramakrishnan noted that in setting all 11 convicts free, the question was, “What was the social justice or human justice in this case to merit the same? One does want to see humanising trends in penology. But the stark truth is that people have been in jail or even on death row for decades without their pleas even being considered by courts or by the executive. Which is why this recent release shocks and evokes condemnation.”

Speaking to The Wire, Anand Yagnik, a senior lawyer practising in the Gujarat high court, said that the remission is inconsistent with the new criminal jurisprudence that has emerged in the post-Nirbhaya era.

“Both the state and Union government’s policies should have been amended in the post-Nirbhaya era, given the recommendations of the Justice Verma Committee, especially when it comes to such heinous crimes against women,” Yagnik pointed out. Courtesy The Wire