With fate of Bilkis Bano convicts now in Maharashtra govt’s hands, a look at state’s remission policy

Setting aside Gujarat govt's remission of the 11 convicts’ life sentences, SC has noted Maharashtra was the appropriate authority to grant remission.

File photo of Bilkis Bano | PTI

New Delhi: While setting aside the Gujarat government’s decision to allow premature release of the 11 convicts in the Bilkis Bano case, the Supreme Court Monday observed that it was the Maharashtra government which was the appropriate authority to decide on their remission applications.

Bano was gang-raped and according to the prosecution, 14 members of her family — including her three-year-old daughter Saleha — were killed, by a mob in Gujarat’s Randhikpur village, while fleeing during the Godhra riots of March 2002.

Bano was 19 and five months pregnant at the time.

The accused in the case were sentenced to life imprisonment by a trial court in Mumbai in 2008. This was upheld by the Bombay High Court in May 2017. In April 2019, the Supreme Court also directed the Gujarat government to give Rs 50 lakh as compensation, a job and accommodation to Bano.

Setting aside the remission of the convicts’ life sentences, Monday’s judgment noted that if the convicts “are inclined to seek remission in accordance with law, they have to be in prison as they cannot seek remission when on bail or outside the jail”. This means that once the convicts report before the jail authorities, they can then approach the Maharashtra government for remission.

The judgment further took note of the special CBI judge’s reliance on the Maharashtra government’s resolution, dated 11 April 2008 as the applicable policy for remission.

This policy, seen by ThePrint, says that for crimes against women and minors generally, the minimum sentence that the convicts need to undergo is 20 years of imprisonment. It further says that in cases where “the crime is committed with exceptional violence and/or with brutality or death of victim due to burn and/or murder with rape”, the convicts would be eligible for remission only after serving a sentence of 28 years. In other words, they would have to undergo a minimum imprisonment of 28 years before they can be granted remission.

Before the Supreme Court in 2022, one of the convicts had told the court that they had served 15 years and 4 months in jail, as of April 2022. They were released on remission in August of that year.

Life imprisonment actually means living in jail for life. But Section 432 of the Code of Criminal Procedure (CrPC) permits the “appropriate government” to grant remission or reduce a person’s sentence. Remission means reducing the amount of the sentence without changing its character. For instance, this would include changing two years rigorous imprisonment to one-year rigorous imprisonment.

Section 433A of the CrPC places a restriction on powers of remission. It says that where a person has been given a life sentence, for a crime which has death penalty as one of the possible punishments, then such a person shall not be released from prison unless he has served at least 14 years in jail. Additionally, state governments frame their own guidelines over the power to grant remission.

 

CBI trial judge gave negative recommendation

One of the 11 convicts in the case, Radheshyam Bhagwandas Shah, aka Lala Vakil, approached the Supreme Court in March 2022, seeking a direction to the Gujarat government to consider his application for premature release. In a judgment passed in May 2022, the SC ruled that since the crime in this case was committed in Gujarat and ordinarily, the trial would’ve been conducted in the state, it is the Gujarat government that should consider the application of the convicts. The trial had been transferred from Gujarat to Mumbai in 2004, on an application filed by Bano, alleging that she and her family members were being threatened.

The Supreme Court’s Monday judgment also noted that before approaching the Supreme Court, Shah had initially approached the Gujarat high court in 2019, for a direction to consider his remission application by the State of Gujarat. The HC rejected this application in July 2019, observing that he should approach the Maharashtra government instead. His second similar application before the Gujarat HC was also dismissed in March 2020.

Within 14 days of the July 2019 high court order, Shah approached the Maharashtra government with a remission application on 1 August, 2019. The CBI had then given a negative recommendation to the state government on his application on 14 August, 2019. The Special CBI Judge, too, gave a negative recommendation on 3 January, 2020. As did the Superintendent of Police, Dahod, Gujarat, on 3 February 2020. Similarly, the district magistrate, Dahod, Gujarat had also given a negative recommendation on the application on 19 February 2020.

The judgment noted that the special CBI judge pursued the remission guidelines issued by the Maharashtra government in 1978, 1992 and 2008, and observed that the 2008 resolution would apply as it had superseded all earlier orders and guidelines.

As per the Supreme Court judgment, the special judge had then noted that the case of the convicts would fall under categories 2(c) and 4(d) of the 2008 resolution. Category 2(c) provides for a minimum period of imprisonment of 28 years for the convicts to be granted remission in cases of exceptional violence or murder with rape. Category 4(d) provides for a minimum period of imprisonment of 26 years for murders committed with premeditation and with exceptional violence and brutality.

In its Monday judgment, while the Supreme Court didn’t expressly adjudicate on which Maharashtra policy would apply in this case, it did observe, “Had the State of Maharashtra considered the applications of respondent Nos.3 to 13 for remission, this vital opinion of the Presiding Judge of the Court which had convicted them would have carried weight in the mind of the Government of the State of Maharashtra as well as the terms of the Government’s Resolution dated 11.04.2008 which was the applicable policy for remission.”

The remission confusion

The Supreme Court, in its May 2022 judgment, had said that their application would be considered under the state government’s 1992 policy for state remission and premature release of prisoners — an older policy. This faced widespread criticism because the convicts were not eligible for remission of sentence under the Gujarat government’s latest 2014 policy, but were released under the old 1992 policy instead.

The bench led by Justice BV Nagarathna Monday quashed the Gujarat government’s decision to allow remission of life imprisonment of the 11 convicts in the case. They were granted liberty and released from imprisonment through remission orders passed in August 2022. The apex court now ruled that the Gujarat government lacked jurisdiction to grant premature release to the convicts, and set aside the Gujarat government’s decision.

Asserting that it was the Maharashtra government that had the power to grant remission to the convicts, they have now been directed to report to the concerned jail authorities within two weeks.