The story so far: As India celebrated the 75th anniversary of Independence on Monday, 11 men sentenced to life imprisonment for the gang rape of Bilkis Yakub Rasool and the murder of seven of her family members during the 2002 Gujarat riots were released from jail in Godhra. As the 11 convicts, who walked out of the prison after 15 years, were welcomed with sweets and garlands, the Gujarat government said it relied on its old remission policy of 1992 to approve their applications for remission of the sentence and not the current policy of 2014.
While the release of the 11 convicted men caused widespread controversy, it brought back traumatic memories for Bilkis Bano and her family. In a statement to the media, released by her advocate on August 17, Bilkis asked “…how can justice for any woman end like this? I trusted the highest courts in our land. I trusted the system, and I was learning slowly to live with my trauma. She urged the Gujarat government to “undo the harm”.
Who is Bilkis Bano?
Bilkis Bano was 21 years old and five months pregnant when she was brutally gang-raped during her attempt to flee along with her relatives in the violence that broke out during the post-Godhra communal riots in Gujarat. The mob that attacked the group killed her three-year-old daughter, Saleha, and 14 other members of her family, maintains Bilkis Bano.
Violence had broken out in Gujarat in the aftermath of the Sabarmati Express train burning incident at Godhra on February 27, 2002 amidst an already communally charged atmosphere. Fifty-nine people were charred to death after a mob torched one of the coaches returning from Ayodhya to Ahmedabad with a large number of ‘kar sevaks’ of the Vishwa Hindu Parishad (VHP).
In his book ‘ Between Memory and Forgetting: Massacre and the Modi Years in Gujarat’, author Harsh Mander narrates the horror. The family was moving in a truck to a village, but before they could reach their destination, a mob of 20-30 people attacked them. The men snatched the three-year-old from Bilkis, and smashed her head to the ground. With her daughter dead, three men, all from her village and people she knew, took turns to rape a pregnant Bilkis. “In the mayhem around her, the 14 members of her family were raped, molested, and hacked to death by the mob,” the author notes. Taking her for dead, the assailants left her naked and unconscious. However, Bilkis Bano lived to retell the horror.
The Bilkis Bano trial
Bilkis regained consciousness hours later and that was the beginning of a longstruggle for justice and dignity. The state machinery reportedly worked against her as she tried to get the local police to file her complaint. Even after an FIR was filed, it allegedly omitted crucial details.
Bilkis Bano approached the National Human Rights Commission (NHRC) and moved the Supreme Court. In December 2003, the SC ordered a CBI probe into the case. A month later, all accused were arrested and the trial began. In August 2004, the trial was moved to Mumbai at the instance of the SC after Bilkis Bano told the court that her family was living in the shadow of danger and uncertainty.
Four years later, the trial court found 13 of the 20 accused guilty. Of them, 11 were awarded life sentences for their heinous crimes. Seven others were acquitted for want of evidence. A three-year sentence of imprisonment was awarded to the cop who had initially refused to file Bilkis Bano’s complaint. In May 2017, the Bombay High Court upheld the conviction and life imprisonment of all 11 and quashed the acquittal of seven others. “I want justice, not revenge. I want my daughters to grow up in a safe India,” Bilkis Bano had then said.
The SC later ordered the Gujarat government to pay Bilkis Bano a compensation of Rs 50 lakh along with a job and accommodation.
Why were the rape-murder convicts released?
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, which was headed by the Godhra Collector. The committee also included BJP legislators C.K. Raolji and Suman Chauhan, former BJP Godhra municipal councillor Murli Mulchandani, and BJP women wing member Snehaben Bhatia.
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. On August 15, the 11 walked out of the Godhra sub-jail where they were serving their sentence.
What is the controversy over remission in the Bilkis Bano case?
Remission and the laws governing it
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. 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. 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...”
Application in the Bilkis Bano case
The decision of the Gujarat government not only triggered public outrage over the release of rapists and murderers, but experts also pointed out inconsistencies in remission policies that enabled the convicts to walk out of jail.
In a tweet posted on the same day, Rahul Gandhi wrote “Those who raped a five-month pregnant woman and killed her three-year-old daughter were released during ‘ Azadi ka Amrit Mahotsav.”
“What message is being given to the women of the country by those who peddle lies about ‘Nari Shakti’? “Prime Minister ji, the entire country is seeing the difference between your words and deeds,” Mr. Gandhi said in a tweet in Hindi.
The State government said it relied on the 1992 policy which doesn’t explicitly define the nature of the crime to be considered while deciding on a remission plea. However, under the 2014 norms, a person convicted for gang rape and murder cannot be released prematurely. “Had the government been asked to consider their pleas as per the current remission policy, their release would not have been possible,” advocate Mihir Joshi was quoted as saying by news agency PTI.
Gujarat officials maintain that the release of prisoners was done as per the laid-down procedure. However, the Opposition has claimed that the remission was granted in violation of the Centre’s latest guidelines on remission. The MHA had in a recent communication instructed the States and the Union Territories to grant special remission to a certain category of prisoners to commemorate the 75th anniversary of Independence. The guidelines specified that special remission was not to be granted to 12 categories of convicts, which included “prisoners convicted for the offence of rape”.
Defending the decision of the Gujarat government, Gujarat’s Additional Chief Secretary (Home) Raj Kumar said the guidelines did not apply in the Bilkis Bano case since the SC had directed the State to take into account the 1992 policy. He also told The Indian Express that the prisoners were granted remission after taking into consideration of their “age, nature of the crime, behaviour in prison.”
Questions have also been raised on whether the Gujarat government moved to grant remission without consultation with the Centre, as required under Section 435 of the CrPC. However, the Centre has not made its position clear on the matter so far.
The gist:
- After 11 men, sentenced to life imprisonment for the gang rape of Bilkis Yakub Rasool and the murder of seven of her family members during the 2002 Gujarat riots, were released from jail in Godhra on August 15, the Gujarat government said it relied on its old remission policy of 1992 to approve their applications for remission of the sentence and not the current policy of 2014.
- 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. 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.
- Following this, the Gujarat government formed a committee, which was headed by the Godhra Collector. The committee also included BJP legislators C.K. Raolji and Suman Chauhan, former BJP Godhra municipal councillor Murli Mulchandani, and BJP women wing member Snehaben Bhatia. The panel “unanimously” decided in favour of remission of those convicted.
