FrontLine

Justice for Bilkis

The remission granted by the Gujarat government to 11 persons convicted of gangraping Bilkis Bano and murdering seven members of her family is a grievously wrong decision, which the Supreme Court must rectify at the earliest.

- BY T.K. RAJALAKSHM­I

AUGUST 15, 2022 will be remembered not only for the grand scale of celebratio­ns of the 75th year of independen­ce but also for a less laudable reason: on that day, the Gujarat government passed an order remitting the sentences of 11 persons convicted of gangraping Bilkis Bano and murdering seven members of her family in 2002.

Bilkis Bano was 21 years old and five months pregnant when she was gangraped in Gujarat’s Dahod district during the post-godhra riots. Among those murdered was her three-year-old daughter. Bilkis Bano could easily identify the perpetrato­rs: they were convicted and sentenced to life imprisonme­nt with fine in 2008 by three different courts—a Special CBI court in Mumbai, the Bombay High Court, and the Supreme Court.

The trial was held in Maharashtr­a rather than in Gujarat, where the crime occurred, because Bilkis Bano had complained of receiving death threats from the accused. Fourteen years later, the convicts walked free, thanks to the Gujarat government’s older remission policy being invoked. The release evoked strong reactions from civil society groups, women’s organisati­ons, and members of the judiciary.

Although the Central government in June 2022 had issued guidelines under which special remission could be granted to prisoners on three occasions: August 15, 2022, January 26, 2023, and August

15, 2023, the guidelines made it clear that remission would not apply to those convicted with death sentence or life imprisonme­nt in rape, terror, dowry death, and money laundering cases. But these guidelines were apparently contravene­d in the present case.

The convicted persons were released by the Gujarat government under its 1992 remission policy, and it was projected as if the judiciary had asked the executive to do so. But this is not the case. One of the convicts, Radheshyam Shah, had approached the Gujarat High Court seeking premature release. The High Court had dismissed his plea saying that the “appropriat­e government” to decide on the matter was Maharashtr­a, not Gujarat, as the trial took place in Maharashtr­a. In May 2022, the Supreme Court rejected the High Court’s view: it held that the case had been shifted to Maharashtr­a because of “exceptiona­l circumstan­ces” and for the “limited purpose of trial” and the remission plea had to be decided by the Gujarat government since the crime took place in Gujarat. Thus, it cannot be said that the Supreme Court issued the remission orders, as

is the impression being given.

The executive could have chosen to decline the plea considerin­g the gravity of the crime, which could well have invited the death penalty, as happened in the Nirbhaya case. But a panel set up by the Gujarat government approved the remission under the 1992 policy prevalent in the State.

SHARP CRITICISM

The point to note here is that when Nirbhaya was gangraped in 2012, leaders of the Bharatiya Janata Party (BJP) had taken to the streets condemning the then Congress government and screaming “phaansi do” (hang them). This outrage appears to have gone missing in the case of Bilkis Bano. However, a few members of the BJP, such as the former National Commission for Women chairperso­n, Lalitha Kumaramang­alam, did publicly express disappoint­ment with the Gujarat government’s decision.

But support for the remission was also overwhelmi­ng: when the convicted men were released, they were treated like heroes and welcomed with garlands by members of the Vishwa Hindu Parishad. The government panel that considered the remission plea had members who are affiliated to the BJP. One of them, a BJP MLA, remarked that the convicted persons are Brahmins and have sanskari values, and expressed doubt over whether they had committed the crime in the first place.

When the petition challengin­g the remission was admitted, one of the judges wondered aloud if merely the fact that the act was horrific was sufficient to say that remission was wrong. While the petitioner­s have declined to comment on these observatio­ns, the remarks drew criticism from many quarters.

The remission has been challenged in the Supreme Court. One of the petitioner­s is social activist and Lok Sabha MP Subhashini Ali. The petition points out various procedural lacunae. As per Section 435 of the CRPC, the Central government’s opinion should have been sought, especially since the case had been investigat­ed by the CBI. Further, according to Section 433 (2) of the Crpc, the opinion of the presiding judge who passed the sentence could be required by the State government before granting remission. Though the Crpc section uses the phrase “may require”, a five-judge Constituti­on bench had held it as a mandatory requiremen­t in V. Sriharan Alias Murugan vs. Union Of India And Others. Therefore, the CRPC as well as judgments made by the Supreme Court itself make it clear that even though a State government has powers of remission, it can exercise it only under certain conditions.

NOT OBJECTIVE

In the Bilkis Bano case, the opinions of the Central government and of the presiding judge are relevant points, which should have been taken into

Supreme Court advocate Kirti Singh pointed out that the convicted persons had committed a crime against humanity but the manner in which they were greeted after their release was as if they had done a service to the nation.

account. Interestin­gly the presiding judge, Justice (Retd) U.D. Salvi, who passed the judgment in the Mumbai City Civil and Sessions Court, has gone on record saying that his opinion had not been sought. Subhashini Ali told Frontline that Justice Salvi was against the granting of remission to these individual­s, and added that he had also pointed out that the men had shown no remorse, which is usually considered while granting remission. She said, “The Gujarat government’s panel consisted of many BJP members, who were clearly not objective parties.”

The Supreme Court had ordered in 2019 that Bilkis Bano be paid Rs.50 lakh in compensati­on, and given a house and a job. Subhasini Ali pointed out that Bano has had to fight for her compensati­on and has not yet been given the house or the job she was assured of.

She also referred to the “sanskari Brahmins” remark and asked if the convicts were given remission because they belonged to the majority community and because of their caste. A similar tendency was noticed in the Hathras rape and murder case too, she said, where the victim was a

Valmiki and her rapists were Thakurs, who were protected by the state machinery.

She said that in the course of the petition hearing, the CJI had made it clear that the Supreme Court had sent the matter back to Gujarat but had not told the government to give remission. She said that the Supreme Court was aware that the granting of remission has created outrage among all sections. She hoped that they would respond to it by setting a date for an early hearing.

A notice has been issued to the Gujarat government to reply to the petition. Notices have also been sent to the 11 accused. The Supreme Court has the power to review the remission order of a State government and it has done so in several cases in the past.

HATE CRIME

Supreme Court advocate Kirti Singh pointed out that the convicted persons had committed a crime against humanity but the manner in which they were greeted after their release was as if they had done a service to the nation. Singh wondered if the Gujarat government panel had considered the individual factors in the case. She pointed out that in Laxman Naskar vs. Union of India, the Supreme Court had ruled that before granting remission, the State must determine whether the offence is an individual act of crime without affecting the society at large. This was a hate crime that involved killing and targeting of minorities, she said.

Singh, who is also the legal adviser and vice president of the All India Democratic Women’s Associatio­n, said that she did not support the death penalty but that did not mean that one should remit life sentences in cases where the victim has suffered grievous harm.

An open letter protesting the remission was sent to the Chief Justice of India by 130 former bureaucrat­s and civil servants including former Home Secretary G.K. Pillai, ex-foreign Secretarie­s Shiv Shankar Menon and Sujatha Singh, and former Lieutenant Governor of Delhi, Najeeb Jung. They said that the remission must be rescinded and the 11 convicts should complete their life sentence. They have appealed to the Supreme Court to rectify this “horrendous­ly wrong decision.” m

 ?? ?? BILKIS BANO with her daughter during a press conference in New Delhi
BILKIS BANO with her daughter during a press conference in New Delhi
 ?? ?? SWEETS BEING GIVEN to the 11 convicts after their release from the Godhra sub-jail. A video grab.
SWEETS BEING GIVEN to the 11 convicts after their release from the Godhra sub-jail. A video grab.
 ?? ?? A PROTEST AGAINST the release of the convicted men in New Delhi.
A PROTEST AGAINST the release of the convicted men in New Delhi.

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