Anand Yagnik is a human rights lawyer based in Ahmedabad. A crusader for justice for victims of communal violence, Yagnik speaks to Frontline about the Gujarat government’s use of discretionary powers to sanction remission for the 11 men convicted in the gruesome Bilkis Bano case.
During the brutal 2002 Gujarat communal pogrom, Bilkis Bano, a young mother at the time, was gangraped by a men who she identified as her neighbours. Eleven members of her family, including her six-year-old daughter, were killed in front of her. Left to die, she was rescued and given shelter by a tribal community.
A home guard took her to file a complaint, which was deliberately not recorded in accordance with the law. It was only after she pursued justice through the National Commission for Women that her case got legitimacy. The Supreme Court transferred the trial out of Gujarat to ensure a fair trial. It was the first case from the Gujarat riots to see a significant number of convictions and a monetary compensation.
Could you speak about the State government using its authority to remit the sentences of the 11 convicted in the Bilkis Bano case?
Life imprisonment could mean until the last breath, or life imprisonment simpliciter. The latter involves serving for a 14-year period. In this case, the convicted made an application to the Supreme Court (SC) seeking remission. The SC said the place and date of the offense was relevant in this case. As the offence took place in Gujarat in 2002, the case fell under the jurisdiction of a 1992 policy of the Gujarat government that says life convicts who had served 14 years were entitled to be considered for remission. Therefore, the SC said it was applicable. The state made use of this.
Discretion to give remission to an accused who is convicted by a court established under the Constitution of India can be questioned by an administrative law. For instance, the law asks whether you have exercised sound, rational, logical and intelligent discretion. I do not think this was followed in this case.
The object of remission should not be to release someone. The object is to strike a balance between the deprivation of liberty for the gruesome offence that they had committed against whether freeing them, that too on Independence day, will serve the purpose of justice. By doing this, can the government prove its proclaimed intention of protecting India’s women is valid?
Why has the government selected rapists to exercise the discretion of the remission policy? Remission policy is only exercised occasionally. It overrides a sentencing. Should discretion be exercised in gruesome cases like rape and murder?
Just because they have served 14 years, it doesn’t mean they should be released. They are responsible for gang rape, collective murder, and communal violence. Eleven people of Bilkis Bano’s family were slaughtered. Remitting their sentence will set a very bad precedent.
Section 425 of the Criminal Procedure Code (CrPC) allows the state to give remission. Could you explain the law applicable here?
The CrPc says: “No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends.”
Law and order is a State subject. However, when the Delhi Police Establishment Act is attracted and the CBI has investigated the matter, the Government of India should have been consulted as well. Whether they have done that we do not know. If they have not done it, it requires reconsideration.
The Bharatiya Janata Party (BJP) had taken a tough stand on the issue of rape, but in this case they seem to have put that aside. Your comments.
Yes, absolutely. In fact, after the tragic 2012 Nirbhaya incident, they said that if they came to power they would ensure capital punishment to rapists. The late BJP leader Sushma Swaraj is on record telling Parliament that every rapist must be hanged. While the Congress took a lenient stand with regard to capital punishment for rape, a very clear position was taken by not just the BJP but the RSS as well. When they became the ruling regime, the BJP amended legislation and cleared capital punishment for rape. Furthermore, the issue of violence against women within Islam was taken as a personal initiative by Prime Minister Narendra Modi. He is constantly talking about Nari Shakti. What does it even mean now?
In 2014, he starts the “Beti Bachao Beti Padhao” campaign in his speech at Red Fort on Independence day. In 2022, he makes a five-point promise from the Red Fort. One of them is safety, security, education, empowerment and involvement of women in public affairs. It is ironic his party grants the remission on the same day.
The case was transferred to Mumbai because it was believed the trial would not be a fair one in Gujarat. Recent events, including the remission, suggests the Gujarat government wants to be vindicated on the 2002 riots.
The Bilkis Bano case was not only rape. It was communal violence and murder. They targeted someone who was was not involved in any provocation. They were targeted because they were Muslims. There is enough evidence to prove the convicts have connections to the BJP, Vishwa Hindu Parishad, Bajrang Dal. Who funded their defence? I don’t have to name them.
This is politically mala fide. What the party can’t do directly, it has done indirectly. If the convicts were Muslim, and if the woman was not a Muslim, would it have exercised discretion? Sorry, No. We will be seeing more of this unfortunately.
