Justice for Bilkis Bano

The remission is a grievously wrong decision, which the Supreme Court must rectify at the earliest.

 Bilkis Bano with her daughter during a press conference in New Delhi | Photo Credit: SANDEEP SAXENA

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.

Sweets being given to the 11 convicts afer their release from the Godhra sub-jail. (A video grab)

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.

Highlights

• The 11 persons convicted in the Bilkis Bano case 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.
• 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
• The remission has been challenged in the Supreme Court. One of the petitioners is social activist and former Lok Sabha MP Subhashini Ali. The petition points out various procedural lacunae
• 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 account
• A notice has been issued to the Gujarat government to reply to the petition. Notices have also been sent to the 11 accused

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 former 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 v 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 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.”

Demonstrators hold placards during a protest against the release of the convicted men in New Delhi | Photo Credit: SAJJAD HUSSAIN

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. 

Alo 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.

Petitioner Subhashini Ali speaks to the media during a hearing on the Bilkis Bano case by the Supreme Court in August 2022. | Photo Credit: PTI

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 SC was aware that the granting of remission had 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 and 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 persons convicted should complete their life sentence. They have appealed to the Supreme Court to rectify this “horrendously wrong decision.”