In Erewhon’s appellate court 

A fictional order from a fictional appellate board with 10 fictional members who seem very suited to real life.

Published : Sep 08, 2022 11:00 IST

Samuel Butler, author of ‘Erewhon’.

Samuel Butler, author of ‘Erewhon’.

This is an appeal filed against the remission of sentence to 11 persons convicted in 2008 for the murder of the three-year-old daughter of Bano Barbaad, for the rape of Bano, and the rape and murder of Bano’s mother. The accused were convicted by the Sessions Court. The conviction was upheld by the High Court and in turn by the Supreme Court. They were sentenced to imprisonment for life. It may be mentioned that the trial was transferred out of the Gujral State, where the offence was committed, to the neighbouring State of Mahral. The apex court was of the opinion that a fair trial could not be conducted in the home State because of the influence wielded by the accused and the political circumstances surrounding the case.

The Remission Board of 10 members considered the plea of remission filed by the prisoners and allowed it on grounds that they had served over 14 years in prison and their conduct in jail was good. Five members of the Board were members of the ruling party of the State of Gujral and two of them were members of the Legislative Assembly.

The appeal against remission is not filed by Bano; we are told she is in a state of shock. It is filed by a civil rights organisation. The State government is the principal respondent, and the convicts are the other respondents.

ALSO READ: Justice for Bilkis Bano

The arguments presented in the  appeal are as follows:

That the order of the Gujral Remission Board is without jurisdiction since the trial was held in Mahral. Fairness is not possible in Gujral, given that the accused belong to the ruling party, which is inimically disposed towards the members of the community that Bano belongs to. The argument is appealing at first blush, but the Supreme Court has ruled on this point, stating that since the crime was committed in the State of Gujral all further proceedings, including remission or premature release, have to be considered in terms of the policy applicable in Gujral and not the State where the trial stands transferred.

It does seem somewhat odd that when Gujral was not the proper place for the trial, given the power of the accused and their political party, it should be considered the appropriate venue for remission of sentence. However, it is not for us to doubt the wisdom of the Hon’ble Supreme Court.

The other aspect which seemed odd was that the Supreme Court held that when these gentlemen (the term is not to be read as “gentle men”, we are only being customary) applied for remission it was to be considered on the basis of the old guidelines and not the new ones introduced in 2014. The new guidelines specifically bar remission for  those convicted of crimes like gang rape and murder. Common sense would dictate that considerations of the present would govern whether the men now qualify for release. After all, one dresses for the weather today, not for the weather three decades ago; illnesses have to be cured with the latest methods available, not with the methods available when the disease was first discovered.

However, as we have sometimes seen, the law is no respecter of common sense (we leave the vice versa aspect open), and as we have observed above, judges of the Supreme Court are above question. So the relaxed guidelines must be used for relaxation of sentence and future relaxation of the convicted.

Non-application of the mind is pleaded strongly by the appellant—that the panel did not apply its mind fully to all the material aspects of the matter. This does not appeal to us. Certainly there are many aspects to be considered. One is whether the crime can be repeated. Bano has no other children of such tender years, and therefore that abhorrent crime cannot be repeated. She is older by 20 years. Her mother is dead, at the hands of these men. So repetition is highly unlikely. It may well be that other women in the area would not feel safe with these particular representations of humanity around, but we cannot be mindful of all and sundry.

It seems to us that the members of the Board have applied their minds more than fully. Jurists have often spoken of the relation between law and society, of how the law is not a bare ready reckoner or dictionary outputer but must take its bearings from the state of society. The State of Gujral is a progressive State and is often referred to as a vibrant one. Both progress and vibrancy mandate that the past be left behind and not fetter the present. If the State and its prominent leaders are constantly reminded of alleged past wrongs, how will they take their rightful place in the country and the world, given that many prestigious projects and monuments are to be located here? We can also see that very few leading persons of the State of Gujral have protested against the release, and that is a strong indication and index of pervasive morality.

Application of sound mind is also writ large on these proceedings for another reason. All the officers on board are civil servants in Gujral. They have seen what happens to senior officers of the State who have taken a strong stand on principles of governance. One is serving a jail term for charges resurrected from a refrigerator, and another was hauled out of retirement for giving evidence before a special investigation team against powers that be. Are these junior officers expected to be so callous and unmindful of the interests of their families, their health and careers that they should reject popularly backed pleas of remission?

We can expect judges to rise above fear and favour, to be mindful neither of higher office nor post-office jobs, and even though we get unpleasant surprises we persist in such expectations, for such is the stuff of judicial office and such is the strength of our hopes. But we have surely long given up on the civil service and therefore it is not a worthwhile ground of appeal that these officials did not apply their minds properly. In our opinion, they have done so very fully.

Similarly, how can any fault be found against the MLAs of the ruling party on the Committee? They were appointed by the government, they belong to the ruling party, the prisoners are like kith and kin to them, from the same parivar or family. Of course, they must come to their rescue. This is what loyalty and prudence dictate. And political longevity.

The jail authorities have also confirmed that the prisoners did not commit any offence while in jail. Of course, it would be difficult for them to murder any three-year-old children in jail since children are not housed in jails. And presumably women are not allowed in the same jails as men, so they could not have raped any women. Therefore, the certification of good conduct seems to be in order. As regards other offences, one of the members of the Remission Board has confirmed that all the convicts are of good sanskaar. He has not stated whether this means a continuation of their sanskaar as of 2002.

Our sympathies go to Bano; she has borne the horrors of rape and the murder of her child and mother before her eyes; she has borne the ordeals of our justice, rather our legal, system. To what fresh depths of hopelessness and despair can this lady sink? 

But what are we to do? We must take the law as it is, the Supreme Court judgment as it is, society as it is, the bureaucracy as it is, politicians as they are, and the State of Gujral as it is. Of the state of the country we do not here speak.

There is a partially dissenting order delivered by one of us. In keeping with the current style we are not disclosing names of the writers of judgments.

ALSO READ:‘This remission will set a bad precedent’

DISSENT: I am retiring tomorrow. I have kept my conscience intact all these years. I do not to want to surrender it now. And I don’t want a post-retirement sinecure. So I can speak my mind to some extent. I do not dissent on the question of grant of remission to these prisoners. I am neither so brave nor so foolhardy nor so oblivious of self-interest. However, I will impose some conditions on these men.

A. They will never visit the State of Gujral or any neighbouring State. They will at all times be 1,000 kilometres away.

B. Each of them will take up a job, earn an income, and send half the income to Bano with a letter of apology each month.

C. The State of Gujral has paid Rs.50 lakh to Bano as compensation for the horrendous wrongs done to her. These men will pay a further sum of Rs.50 lakh to her but indexed to today’s value of the rupee. They are from a State which knows the value of money, so this is entirely appropriate.

Erewhon (an anagram of “nowhere”) is the fictional country where Samuel Butler set his satirical novel of the same name. The appellate board, members, and the order in this piece are fictional. Sriram Panchu is real. He is a Senior Advocate at the Madras High Court.

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