Understanding the Remission Policy That Led to the Release of Bilkis Bano’s Rapists

With all the outrage and debate that the remission has prompted, it is important to remember that at the centre of it stands a survivor negotiating with her lived trauma and harm every day.

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The 2002 Gujarat riots in India are remembered as one of the most brutal episodes of violence post-Partition. Twenty years later, the violence and trauma that the riot victims suffered were renewed with the premature release of 11 gang-rape and murder convicts who had been sentenced to life imprisonment in the Bilkis Bano case.

During the 2002 Gujarat riots, then 21-year-old Bilkis Bano, who was five months pregnant, was gang-raped. Her mother and sister were raped, virtually her entire family, including her three-year-old daughter, were killed in front of her eyes. In 2008, a special Central Bureau of Investigation (CBI) court sentenced the 11 accused in her case to life imprisonment. The same was subsequently upheld by the Bombay high court in 2017.

The remission policy

On August 15 this year, the Gujarat government, on the recommendation of a Jail Advisory Committee, remitted the sentences of the 11 convicts. This remission was allowed as a result of a Supreme Court order on May 13 which authorised the Gujarat government to consider the convicts’ remission as per the 1992 remission policy which was in effect at the time of their conviction.

Also read: Release of Bilkis Bano Case Convicts: Conflicting Remission Policies Raise Difficult Questions

One of the convicts, Radheshyam Bhagwandas Shah alias Lala Vakil, had moved the Supreme Court in May through a writ petition under Article 32, seeking that the state of Gujarat be permitted to consider his application for remission under the 1992 remission policy. The Gujarat high court, where he had previously filed a petition, was of the view that the appropriate government to evaluate the convicts’ eligibility for remission was the Government of Maharashtra. This was based on the fact that the trial had been transferred to and heard in Maharashtra due to fear of evidence and witness tampering.

Quashing the Gujarat high court’s decision, the Supreme Court deemed Gujarat, not Maharashtra, the appropriate government to evaluate the remission. Following the same, a special panel consisting of judicial experts and politicians recommended to the Government of Gujarat that the 11 convicts be released.

Supreme Court of India. Photo: Flickr

The Supreme Court order, issued by Justices Ajay Rastogi and Vikram Nath, however, may not stand the scrutiny of established legal standards for determining the “appropriate government” for remission under Section 432(7) of the Code of Criminal Procedure (‘CrPC’).

At the outset, the Supreme Court’s decision was delivered in a writ petition. It overturned the Gujarat high court’s order even though the same had not been challenged.

The relevant sections here are Sections 432 and 433 of the CrPC. Section 432 deals with the authority to suspend or remit sentences. The ‘appropriate government’ under this provision has the authority to suspend the execution of the convict’s sentence or remit the whole or any part of the punishment imposed on them, either unconditionally or by imposing conditions accepted by the convict. Section 433 empowers the ‘appropriate government’ to commute death, life imprisonment, rigorous imprisonment, and simple imprisonment sentences.

The leading case on the matter, Union of India v Sriharan @ Murugan and Ors would affirm that the Government of Maharashtra was the appropriate government for determining the remission. However, interpreting CrPC section 432(7), the Supreme Court determined that the Gujarat government is the appropriate government since the case was transferred to and adjudicated in Maharashtra for the limited purpose of trial.

After the trial concluded and the prisoners were convicted, the case was then transferred back to the state where the crime was committed, in this case, Gujarat. With this reasoning, the Supreme Court attempts to supersede the express direction in section 432(7) and the V. Sriharan case. However, such reasoning does not adequately justify any deviation from well-established precedents.

Another strand of this very argument on which the court relies, to hold that Gujarat is the appropriate government, is a Bombay high court order passed in 2013. As per this decision, the Bombay high court held that since the case was sent to be tried in Mumbai under unusual circumstances and then transferred back to Gujarat, the appropriate prison to make decisions regarding the premature release of the convicts would be Gujarat.

However, the Supreme Court erred in reproducing the Bombay high court order since the latter was silent on the question of the appropriate government. The order was on the transfer of prisoners from the jail in Maharashtra to the jail in Gujarat, and since the Inspector General of Prisons had already decided on the matter, the high court opined that those orders for similar convicts be made in the same manner.

Reviewing the decision on which is the appropriate government for the purpose of decision-making would withdraw Gujarat’s government’s jurisdiction to release the convicts. However, even if they are to have jurisdiction, the decision to release the convicts is patently illegal.

Also read: Petitions Challenging Release of Convicts in Bilkis Bano Case Filed Before Supreme Court

The Supreme Court established certain factors for determining whether a convict should be granted remission in the Laxman Naskar case. These include considering whether the offence affects society at large, what the likelihood of the crime being repeated is, what is the convict’s potential to commit crimes in the future, if any fruitful purpose is served by keeping the convict in prison and what the socio-economic condition of the convict’s family is.

One of the convicts in the Bilkis Bano case petitioned the Supreme Court to have his remission application reviewed under the 1992 policy, which makes no distinction whether the case is investigated by the CBI or not, as in the case of the 2014 policy. Even if the case was to be considered under the 1992 policy, the Gujarat government was, as per Section 435(1)(a) CrPC, required to consult the Union government for the release of the convicts. It needs to be stressed here, that the word ‘consult’ has been interpreted as concurrence in the V. Sriharan case itself.

Overall, it can be observed that the remission stands on unsteady grounds with respect to the Supreme Court order and the Gujarat government’s decisions.

Biklis’s identity a motivation for hate crime

Centering Bilkis Bano and her narrative is an important part of understanding the moral and intersectional concerns related to the case. With all the outrage and debate that the remission has prompted, it is important to remember that at the centre of it stands a survivor negotiating with her lived trauma and harm every day. This is especially vital since Bilkis Bano’s identity was crucial to the occurrence of the incident. Her position as a Muslim woman was a motivation in the hate crime that was perpetrated upon her.

Existing at the complex intersection of gender and religion in a Hindu majoritarian state, Muslim women bear the burden of religious and gender subordination. In this context, a show of violence against them is a result of their intersectional identities and is closely tied to the social and political nature of violence itself, which also explains the interpersonal nature of violence that targets victims as part of a group.

While all citizens of the Indian state are granted equality by the Constitution, the reality of vulnerable groups pushes us to ask whether Bilkis Bano has equal status under law. For surely, the release does not constitute a valid exercise of the guided discretionary power of the State under Sections 432-435 CrPC.

Furthermore, the 11 convicts have been released all at once, without considering each convict’s case on an individual basis. This violates the Supreme Court’s decision in Maru Ram that directs the release of each convict on a case-to-case basis.

Recognising these facts and laying emphasis on them in the present discourse encourages us to understand the complexities situated at vulnerable intersections of gender and religion and how institutional barriers are exacerbated when these two operate simultaneously.

Jhuma Sen is an advocate practising at the Calcutta high court. She is also an adjunct faculty at the W.B. National University of Juridical Sciences. The author thanks Nimisha Nagpal for her research assistance.