– Anushka Satya and Nishant Kumar
In 2019, the Supreme Court judge bench of the then Chief Justice of India, Justice Ranjan Gogoi, and Justices Deepak Gupta and Sanjiv Khanna, has observed that “It is very apparent that what should not have happened has happened and the state has to give compensation”. This statement is remarkable because a lot that should not have happened with Bilkis Bano has happened, but not all of it is getting compensated by the virtue of justice. Recently the convicts of the Bilkis Bano case were set free by remission, and it is the legality of this remission that this article seeks to assess.
The Story of Bilkis Bano: A Story of Woe
During the Gujarat violence of 2002, fearing apprehension of attack, a cluster of Muslims of which Bilkis Bano, a five-month-old pregnant woman, was a member, abandoned Randhikpur village. Other members of the group were her three-and-a-half-year-old daughter and 15 other family members. They fled to the nearby Chhaparvad village. Nevertheless, on March 3, a group of Hindu men brutally assailed the family of Bilkis Bano. Bilkis, her mother, and three other women were viciously assaulted and raped. The attack was only survived by Bilkis, a male, and a three-year-old. The CBI conducted investigation of this severe incident. Bilkis requested the trial to happen in Maharashtra for fears of the evidences getting tampered in Gujarat. 11 of the attackers were convicted of rape of a pregnant woman (section 376 criminalising rape), murder (section 300 criminalising murder) and forming unlawful assembly (section 142 defining unlawful assembly and section 143 criminalising the same) under the IPC, and were sentenced for life imprisonment. In the case of Bilkis Bano v State of Maharashtra, the conviction and punishment were upheld by the Bombay High Court and the Supreme Court in 2017 and 2019 respectively.
The long-drawn struggle of Bilkis Bano in her quest for truth and justice seemed to have come to end until the country braced itself to celebrate the 75th anniversary of its independence by granting special remission to prisoners. The Ministry of Home Affairs in its order dated June 10, 2022, directs the release of prisoners on remission as part of Azadi ka Amrit Mahotsav. On heels of this, Radheshyam Shah, one of the 11 convicts approached the Gujarat High Court to claim benefits of this policy. Consequently, the 11 convicts, who were punished with life imprisonment, and had spent some 14 years in prison, walked free out of the Godhra jail on 15th August 2022, the day when the democratic, sovereign nation of India, which strives to pursue justice and equality as its prime notion, was incepted.
Is the Remission Sound in Law?
The Code of Criminal Procedure (hereinafter referred to as CrPC) provides for an option of remission of sentences under Section 432. The provision states that the ‘appropriate government’ may wield its powers to remit the sentence of a convict, in part or in whole, by levying some or no conditions. For the purpose of this provision, the ‘appropriate government’ is determined as per Section 432(7) of the Code. The Section confers the power of remission on the state which has tried the convict and pronounced the order. In the instance of the 11 convicts, the trial was heard in Maharashtra and a trial court of Maharashtra pronounced the judgement convicting them of life imprisonment. Hence, by applying Section 432(7)(b), the appropriate state for the purpose of deciding remission of convicts in Bilkis Bano case should have been state of Maharashtra. The case of Union of India v Sriharan also supports this reasoning. However, the rule of the law was interpreted differently in Radheshyam Bhagwandas v State of Gujarat, where the Supreme Court contended held that ‘appropriate government’ is State of Gujarat. The reasoning offered by the court is that the offence was committed in Gujarat and only for reasons of exceptional circumstances, trial was held in Maharashtra, but this does not limit the remission power of state of Gujarat and shift it to state of Maharashtra.
This judgement of the apex court makes meagre coherence. The same court has elaborated Section 432(7) and explicitly held in Union of India v Sriharan that the ‘appropriate government’ is to be interpreted as the one where the trial occurred, which in the instant case, indisputably, was the state of Maharashtra. The flouting of this provision of the Procedural Code is one of the primary grounds for objecting the remission of the Bilkis Bano convicts.
Furthermore, there was a dilemma as to the remission policy to be applied in the instant case, by the state of Gujarat. The Gujarat government had in place a remission policy of 1992, which did not place any bar on granting remission to life imprisonment convicts. This policy was replaced by a new one in 2014 which proscribed rape convicts from getting remission or premature release. In the case at hand, it was argued by the convicts that since the offence was committed in 2002, and trial was completed in 2008, the 1992 remission policy of the state shall be applicable in their case, rather than the 2014 one. They relied on State of Haryana v Jagdish where the apex court established the settled law 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.
In this context the guidelines issued by Ministry of Home Affairs on September 27, 2014 become relevant. The MHA directed that undertrials who are charged with offences with maximum punishment of life imprisonment can avail for default bail under Section 436 A of CrPC only after completing 10 years of imprisonment. Section 436 A seeks to offer default bail to undertrials on completion of half the maximum term that is associated with the offence a person is charged with. Hence, these guidelines equate life imprisonment with 20 years of jail term. However, the 1992 remission policy of Gujarat allowed absolute release to the convicts of life imprisonment merely in 14 years. On comparatively analysing the two policies, they appear to be juxtaposing each other.
Apart from this, it is legitimate to consider that Section 435(1)(a) of CrPC states that in case investigation is conducted by an agency empowered under any Central legislation, remission by state government under Section 432 shall not be exercised except the same is accompanied by consultation with the Central government. The use of ‘shall’ in the provision makes the Union government’s consultation, which has been repeatedly co-related with concurrence, mandatory. In the case of Bilkis Bano, the investigation was undertaken by the Central Bureau of Investigation (CBI) which was established under Delhi Special Police Establishment Act, 1946. Accordingly taking Union’s consent on the matter of remission was an inescapable requirement. Although it was contended before the Supreme Court that the approval of Central government was received before granting the remission, even if we assume the veracity of this claim, the Centre’s approval is an act of contradiction of itself. In its Special Remission guidelines of 2022, the MHA has carved out 12 categories of convicts who have to be kept bereft of this benefit. The second one of those 12 exceptions includes convicts sentenced with life imprisonment. Hence, if the Central government indeed offered its concurrence for the Gujarat government’s decision to grant remission to the Bilkis Bano convicts in pursuance of the Special Remission policy executed by the MHA, it went contrary to its own policy as it disregarded the exceptions created by itself.
Lastly, it is to be noted that the reasoning offered by the government for its decision of remission is that the convicts maintained ‘good behaviour’ throughout their prison term. This statement stands falsified as one of the 11 convicts was charged in a sexual assault case when he was out on parole during his imprisonment period. Otherwise also, a simple question to be asked is whether maintenance of good behaviour on part of the convicts is a just trade off in the instant case.
Conclusionary remark:
The act of the government to allow remission to those who were convicted of one of the gravest offences perceivable is a massive travesty of justice. The long-drawn struggle of a woman who happened to lose her everything in one night resulted in no fruition.
Propounding reformative justice is not to be constrained but doing that at the cost of ‘justice’ is unwarranted. While granting remission in this case, the government and judges lacked application of mind and rule of law. The legality of the remission can be severely challenged due to the above-mentioned reasons.
Several personalities in the legal fraternity and from beyond have filed multiple PILs in the apex court, requesting it to take up the remission decision for reconsideration. Following this, Bilkis Bano has filed a write petition in the Supreme Court, urging the court to reconsider the decision. The last ray of hope clings on the highest authority of the judicial system, for the restoration of justice, a principle that forms guiding light for this nation.
[The blog is a co-authored work undertaken by Anushka Satya and Nishant Kumar, both from Second year of National Law University Delhi and Hidayatullah National Law University, Raipur, respectively. ]
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