A PARTING IN THE LAW
Amidst the carnage of the 2002 post-Godhra Gujarat riots, some acts of outrage shook the conscience of the nation with special force. One of them was the brutal gangrape of Bilkis Bano, and the killing of 14 members of her family, including her threeyear-old daughter Saleha. A mob in Randhikpur village, Dahod district, had turned them into prey as they tried to flee communal violence. After a long trial, 11 of the accused were convicted and sentenced to life imprisonment by a special CBI court in Mumbai—where the trial had been moved by the Supreme Court—in January 2008. Fourteen years later, this August 15, they walked out of Godhra prison after the state government accepted the recommendation of a jail advisory panel and granted remission to them under a 1992 state policy.
The decision drew flak from many quarters, with media images of the released convicts being publicly feted with garlands adding to the outrage.
The legal process that led up to this merits a closer look. The 1992 policy rested on the view that 20 years is an arbitrary duration for a life sentence. Now, Gujarat had formulated a fresh policy in 2014 after the Supreme Court judged the earlier one invalid. As per the 2014 policy, two situations would bar remissions: one, if the conviction flowed from an investigation by an agency empowered by the Delhi Special Police Establishment Act (as the CBI is); and two, if the conviction was for murder with rape or gangrape. The Bilkis case convicts ticked both boxes. Still the 1992 policy was resorted to, and this was enabled by the SC.
The process was set in motion on May 13 when the apex court asked the Gujarat government to decide on an application for remission filed by one of the convicts, Radheshyam Shah, stating that such an application should be considered by the state where the crime had taken place, not the state where the trial was conducted, thus differing from the Gujarat HC stand on Shah’s plea. Crucially, the SC also maintained the decision would have to be based on the policy that stood on the date of conviction. And in 2008, Gujarat’s 1992 remission policy was very much in place.
Section 432 of the Code of Criminal Procedure (CrPC) empowers a state government to remit sentences as prison is a state subject under the Constitution. Section 433A of CrPC adds a caveat: convicts
who have received a life sentence for an offence that can even carry a death sentence, or whose death sentence has been commuted under Section 433 into life imprisonment, cannot be released without serving at least 14 years in prison. Every state has a Sentence Review Board that exercises powers under Section 432.
In Bilkis’s case, the ninemember committee comprised the Panchmahal district collector, the Godhra principal district sessions judge, the district social welfare officer, the Panchmahal police superintendent, the Godhra sub-jail superintendent, and four persons from civil society who were BJP members. The panel reportedly met four times, and unanimously decided to remit the convicts’ sentence.
On August 23, the remission was challenged in the SC and a bench of Chief Justice of India N.V. Ramana has agreed to look into the matter. This was after a fair bit of negative publicity—a recent news report even cited how several of the convicts had often been out on parole spanning months, when they allegedly issued threats to prosecution witnesses in the case.
Initially stonewalled by the Gujarat police, an intervention by the National Human Rights Commission (NHRC) helped Bilkis approach the SC for justice. An NHRC team under former CJI J.S. Verma had first met Bilkis when they visited a relief camp in Godhra in March 2002. The NHRC had appointed former solicitor general Harish Salve to represent Bilkis in the SC. Salve argued for a fresh probe by the CBI and got the trial transferred to Mumbai in August 2004 after Bilkis alleged threats from the accused. It was the only Gujarat riots case to be probed afresh by the CBI.
On January 21, 2008, CBI special court judge U.D. Salvi convicted 13 accused, sentencing 11 to life imprisonment, after an in-camera trial—an order upheld by the Bombay High Court in May 2017. The SC in 2019 ordered the Gujarat government to pay a compensation of Rs 50 lakh, and offer a government job and accommodation to Bilkis—again, the first such order in a Gujarat riots case. ■