Bilkis Bano’s Rapists Walk Free: The Law Behind Controversial Release 

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Newschecker Team

The Gujarat government on August 15 released 11 convicts who were serving life sentences in the 2002 Bilkis Bano gang-rape and murder of seven members of her family, a move that drew widespread criticism, especially concerning the law of remission that was applied.

A special CBI court in Mumbai had in 2008 sentenced all the accused to life imprisonment, a conviction upheld by the Bombay high court in 2017. The convicts had served around 15 years in jail after which one of them approached the Supreme Court with a plea for his premature release. The apex court then directed the Gujarat government to look into the issue of remission of his sentence, following which the state formed a committee. 

But there’s a catch. The convicts were not eligible for remission of sentence under the Gujarat government’s latest 2014 policy. They were released under the old 1992 policy instead. Quoting a top government official of the Gujarat government news agency PTI reported that the convicts were released as per the remission policy prevalent in Gujarat at the time of their conviction in 2008. 

Conflicting remission policies

Remission of the sentence means the reduction in the duration of the term imposed on a convict. According to this report, the President and the Governors have the power to pardon, suspend, remit, or commute a sentence passed by the courts under Articles 72 and 161 of the Constitution. Under Section 432 of the Code of Criminal Procedure (CrPC), the state governments also have the power to remit sentences as prisons are a state subject. However, the powers of remission of the state government are restricted by Section 433A of the CrPC, which states that where a person has been given a life sentence — for a crime for which the law also allows death penalty as a possible punishment — then such a person shall not be released from prison unless he has served at least 14 years in jail. State governments set up sentence review boards to exercise the powers under Section 432 of the CrPC.

This year, as part of the “Azadi Ka Amrit Mahotsav’”, the government issued guidelines to states and Union Territories to grant special remission to those prisoners who have completed at least half their sentence, including male convicts above the age of 60, terminally ill and women and transgender prisoners above the age of 50. These prisoners will be released in three phases — August 15, 2022 (Independence Day), January 26 (Republic Day), and August 15, 2023 (Independence Day). The guidelines stated that special remission is not to be granted to 12 categories of convicts, which included “prisoners convicted for the offence of rape”.

The Gujarat government was reported to have relied on a 1992 remission policy, following the direction of the Supreme Court to the state to look into the issue  on the basis of the date of the plea applicant’s conviction. A revised policy of the state government collated in 2014, and the latest guidelines issued by the Ministry of Home Affairs (MHA) on early release of prisoners, both mention that rape, murder convicts cannot be released out of turn by the prison administration. 

A Godhra-based lawyer, Parimal Pathak, who represented some convicts, said the Gujarat government’s 1992 policy, which did not clearly delineate the categories of convicts eligible for premature release or remission of their sentences, was relied upon by the state government. 

Why the exception?

Speaking to The Indian Express, Gujarat Additional Chief Secretary, Home, Raj Kumar said  that the application for remission was considered due to the “completion of 14 years” in jail and other factors such as “age, nature of the crime, behaviour in prison and so on”.

Confirming that the Supreme Court had asked the state to consider the early release of the 11 convicts based on the remission policy in effect when they were pronounced guilty, Kumar further told PTI, “These 11 persons were convicted by a special court in Mumbai in 2008. At the time of conviction, Gujarat was following a remission policy which came into effect in 1992. When the matter reached the Supreme Court, it directed us to decide about the release under the 1992 policy, because that was prevalent when conviction came in 2008.  Gujarat adopted a new and revised remission policy for prisoners in 2014. In that policy, which is currently in effect, there are detailed guidelines about categories of convicts who can or cannot be given relief, said the senior bureaucrat.

“Since the conviction took place in 2008, SC directed us to consider this case under the 1992 policy, which was in effect in 2008. That policy did not have any specific clarity as to who can be given remission and who can’t. That policy was not that detailed in comparison to the 2014 policy,” he added.

Legal questions and remedies

Pointing out the conflict between the remission policies of the Gujarat government and Union government, senior advocate Mihir Desai said that under section 435 of the CrPC, “they (the Gujarat government) would have to consult the Union government. We don’t know whether this was done. It should have been.” 

He added that if consulted, the Union government should not have given consent “as their policy does not allow rapists to be given remission. In any event, it is crucial in all matters of remission to take views of families of victims.”

Also, in a conversation with Mojo Story, advocate Vrinda Grover stated that as per Section 435 CrPC, the power of remission awarded to the state government, in a case investigated by the CBI (agency empowered to make investigation into an offence under any Central Act), shall not be exercised by the state government except in consultation with the central government.  Given that the Bilkis Bano case was in fact investigated by the CBI, “the central government has endorsed, approved, affirmed this remission,” Grover said.

Speaking on the need for the state policy to consider a change, justice Anjana Prakash said that though she found from the Gujarat policy that it does bar remissions in several offences of serious nature, it did not do so in cases of rape. “Now that this omission has come to light, maybe the Gujarat government can petition to include it as well,” she said. Meanwhile, Bano’s lawyer, Shobha Gupta, on Wednesday, issued a statement on her behalf. Bano said the decision by the Gujarat state government to free her rapists has left her “numb”, “bereft of words” and shaken her faith in justice. “How can justice for a woman end like this? I trusted the highest courts in our land,” she said in a statement, adding that no authorities reached out to her before making the decision. “Please undo this harm. Give me back my right to live without fear and in peace.”

Authors

Newschecker Team