“Remission” in the Bilkis Bano case : ‘Tilted ‘interpretation by some legal experts and sections in the media

By Amit K Vyas

(Views are strictly personal)

The recent decision of a committee constituted by the Gujarat Govt ?to free 11 convicted persons ( convicted to life imprisonment for gang-raping a then five-month pregnant Bilkis Bano and murdering her family members during the 2002 Gujarat riots) by accepting their application for Remission has caused massive outrage in India. It has been criticised by opposition parties, activists, and several journalists, who have said it discriminates against India's minority Muslims. Attacks on the community have risen sharply since the BJP formed the federal government in 2014. It is reported that more than 6,000 activists, historians and citizens issued a statement urging the Supreme Court to revoke the early release of the convicts, describing it as a "grave miscarriage of justice". Many have also pointed out that the release is in contravention of guidelines issued by both the federal government and the Gujarat state government - both say that rape and murder convicts cannot be granted remission. Life terms in these crimes are usually served until death in India.

The biggest setback, predictably, has been for Bilkis Bano and her family.

The anger and despondence of the family is easy to understand considering the magnitude of the crime and the protracted battle they had to fight for justice.

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While no sane person in this country or in the world would ever pardon or support these 11 rapists and murderers?for the heinous crime, they committed during the riots in 2002, it is not surprising to find ?that the anti-Modi media,?anti-establishment legal experts?and the biased rationalists and pseudo- intellectuals are leaving no stone unturned for wrongly projecting the remission as “discriminatory against the ?minority community “ .

Further, there are some legal experts who have condemned the remission and commented as under :

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·????????“ The remission tantamounts to grave miscarriage of justice".

·????????“The release is in contravention of guidelines issued by both the federal government and the Gujarat state government - both say that rape and murder convicts cannot be granted remission “.

·????????“ Life terms in these crimes are usually served until death in India. “

·????????The State has granted remission as per its 1992 Policy. However, there is another Policy formulated in 2014 based on the directives of the Supreme Court, which had invalidated the 1992 policy. How can the top Court allow such a decision?"?

·????????"There is no clarity if the State has made amendments to Section 376(2)g of the Indian Penal Code (IPC) and its definition. Has the State changed the definition of gravity of this offence of gangrape? If there is a modification in its definition, then the 1992 policy would be applicable. But if the definition and gravity of gangrape continues to be the same without amendment, then the policy of 2014 would be applicable, which would mean they shouldn't be given remission,"?

Now this is a typical example of how prejudiced and biased mindsets ?try to?mis-interpret the legal position with a view to create a charged?atmosphere of resentment against the establishment given their ideological conflict.

The factual position ( in legal?and factual terms) is as under :

Legal position relating to “Remission “.

(1) The State Govt is fully empowered to order remission of the sentence of any convict under sections 432 and 433 of the Code of Criminal Procedure. These provisions are constitutionally valid and never challenged or struck down ?by the S.C.

(2) ?Article 161 of our Constitution grants the Governor the power to grant pardons, etc, and to suspend, remit or commute sentences, but he has to act on the advise of the respective State Govt.

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(3) In terms of Section 433A?of the Cr PC Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. Thus even in such serious cases a convict is entitled to seek remission if he has spent not less than 14 years in prison.

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(4) In the case of State of Haryana & ORS Vs Rajkumar @ BITTU { Criminal Appeal No- 721 of 2021 the Supreme Court held that the state government is empowered to grant remission of sentence to a prisoner only if he has undergone 14 years of actual imprisonment. Even where?the imprisonment is less than 14 years, premature release can exclusively be granted by the Governor, on the aid and advice of the state under Article 161 of the Indian Constitution.

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(5) In Ram Chander v. State of Chhattisgarh,?2022 SCC OnLine SC 500, decided on 22-04-2022 the S.C?held that though the court can review the decision of the government to determine whether it was arbitrary, it cannot usurp the power of the government and grant remission itself. Though discretion vests with the government to suspend or remit the sentence, the executive power cannot be exercised arbitrarily. It said the prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article 14 of the Constitution. The Court has the power to review the decision of the government regarding the acceptance or rejection of an application for remission under Section 432 of the CrPC to determine whether the decision is arbitrary in nature.

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(6) There is no confusion or ambiguity ?regarding the application of the Policy viz 1992 or 2014 the S.C has in Radhesyham Bhagwandas Shah & Lal Vakil Vs State of Gujarat 2022 LiveLaw (SC) 484 | WP(C) 135 OF 2022 | 13 May 2022 has made ?it clear that “the respondents ( Gujarat Govt) are directed to consider the application of the petitioner for premature release in terms of its policy dated 9th July, 1992 which is applicable on the date of conviction?

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(7) It has been observed by a Division bench of the S.C in one case ( Hon’ble Justices SK Kaul and MM Sundresh ) “If a convict has served out 14 or more than 14 years of the sentence, then his case is likely to be considered for remission. The court should either direct (the state authorities) that his application for remission be considered within three months or enlarge him on bail.” It suggested developing a uniform remission policy, if possible, for all State Governments and in cases where State Governments have an objection to grant bail to some accused, who have spent 10 years or more in prison, those matters could be examined separately. Justice Kaul said: “We are celebrating 75 years of Independence, why can’t some action be taken by State Governments

Now coming to the facts in question

(1)?The accused in the case were arrested in 2004 and the trial began in Ahmedabad. However, after Bilkis expressed apprehensions that witnesses could be harmed and the evidence collected by the CBI tampered with, the apex court transferred the case to Mumbai.

(2)?On 21 January 2008, the Special CBI Court sentenced 11 accused to life imprisonment on the charges of conspiring to rape a pregnant woman, murder, and unlawful assembly under the Indian Penal Code. Almost 10 years after this, the Bombay High Court, in May 2017, upheld the conviction and life imprisonment of 11 people in the gang rape case.

(3) In 2019, the Supreme Court awarded compensation of Rs 50 lakh to Bilkis — the first such order in a case related to the 2002 riots.

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(4) One of the convicts, Radheshyam Shah, had approached the Gujarat High Court seeking remission of the sentence under sections 432 and 433 of the Code of Criminal Procedure. The High court dismissed his plea while observing that the “appropriate government” to take a decision about his remission is Maharashtra, and not Gujarat.

(5)Shah then filed a plea in the Supreme Court, pleading that he had been in jail for 15 years and four months without remission as of 1 April 2022 ; Radhesyham Bhagwandas Shah & Lal Vakil Vs State of Gujarat 2022 LiveLaw (SC) 484 | WP(C) 135 OF 2022 | 13 May 2022.

(6) The Apex court directed the Gujarat government to look into the issue of remission of his sentence following which the government formed a committee which took a unanimous decision in favour of remission of all the 11 convicts in the case. The recommendation was sent to the State government, and the 11 convicts were released.

Considering the above position , where is the “illegality” or where is the “grave injustice” or miscarriage of law ? . The convicts had served 15 years in jail and were legally entitled to remission. Even the Constitution has recognised this right under Article 161.

If some people have to argue that given the gravity of the offence these 11 men should have been given the death penalty, then they are definitely jumping the gun. Consider the?1993 Bombay bombings?by the D- Company which resulted in 257 deaths and yet only 1 conspirator was hanged and only 10 accused were sentenced for life.

Take the case of burning alive of six Hindus, five of them women, sheltering in a room the Radhabai Chawl in Mumbai suburb on the night of January 7-8, 1993, in the second phase of the post-Babri Masjid Mumbai riots .The Hon’ble ?Supreme Court acquitted all the 11 Muslims who were earlier convicted by the special TADA judge for the murder due to very weak evidence.

Since 1987 thousands of Kashmiri Hindu women have been raped and butchered by terrorists. We have not heard of a single conviction or punishment in any of such cases.

?The objective behind citing the above instances is not to justify or support or?defend the horrendous crimes committed by the?11 convicts in the Bilkis Bano case. They were punished for the crimes they had committed by a competent court. However, it is necessary to highlight the biased and intellectuals?wearing the cloak of rationality , whether in the media or in the legal fraternity.

It is however highly despicable and disgraceful that the ?convicts were welcomed with?sweets?and garlands and?one C.K. Raulji, a BJP MLA, who was part of a review committee that recommended the release stated- " they are Brahmin people and as it is with Brahmins, their values were also very good.

Such actions only precipitate the already surcharged environment and provide fodder to the anti-national ?and communal elements within the minority community to brain wash innocent minds to show how oppressed they are in a pre-dominantly Hindu India. This churns out more terrorists from hate factories and we see no end to this vicious circle. Also using the term ‘brahmin’ as a trademark to prove how good they are and how great their values are, ?will only give fodder to the anti -Manu wadi parties who are out to scores on caste factor.