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Bilkis Bano case convicts controversy: Why the 11 were released under ‘old’ 1992 policy

Gujarat govt’s release of the 11 convicted in the 2002 gang rape & murder case has drawn widespread criticism, since they were not eligible for remission under the state's latest 2014 policy.

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New Delhi: The Gujarat government Monday released 11 convicts in the Bilkis Bano gangrape and murder case — from the 2002 Gujarat riots. The convicts, all serving life imprisonment sentences, were released after a state government panel approved their application for remission of sentence.

Convicts serving life sentences can be granted remission and released after they have served a minimum of fourteen years. Remission means “reducing the amount of sentence without changing its character”. For instance, it would be remission if a sentence of three years rigorous imprisonment is cut short to one-year rigorous imprisonment.

As soon as the convicts in the Bilkis Bano case were released, visuals emerged of relatives greeting them with sweets and charan-sparsh, (touching their feet for blessings) outside the Godhra jail.

Bano was gang-raped and according to the prosecution, fourteen members of her family — including her three-year-old daughter Saleha — killed, by a mob in Gujarat’s Randhikpur village, when they were fleeing during the Godhra riots in March 2002. Bano had been 19, and five months pregnant at the time.

The case was probed by the Central Bureau of Investigation (CBI) on the Supreme Court’s direction. In 2008, a trial court in Mumbai sentenced eleven accused to life imprisonment. 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 compensation, a job and accommodation to Bano.

After all this, the state government’s latest move of releasing the 11 convicts, is facing widespread criticism. Critics have pointed out that 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 Congress also hit out at Prime Minister Narendra Modi over the release of the convicts, within hours of his praise for “Nari Shakti” during his Independence Day speech Monday. Congress spokesperson Pawan Khera has reportedly said that the decision “brings out the BJP government’s mindset”.

The bone of contention here is the Gujarat government’s remission policy, under which the convicts have been granted remission and released.

What does the Gujarat government’s old remission policy say and how is it different from the new policy? Why were the convicts in this case released under the old policy? ThePrint explains.

Also read: Modi’s ‘calls for peace’, ‘disgruntled officers’: What SC said as it upheld SIT report on Gujarat riots

What does the policy say?

According to Gujarat high court judgments, a Gujarat government circular issued on 9 July 1992, pertains to early release of life convicts who had served out 14 years of jail time on and after 18 December 1978. The circular entitled such cases to being considered for remission. The circular made it the duty of the inspector general of prisons to initiate these proceedings for early release of the convicts.

It said that the IGP needs to start the process for life convicts once they complete 13 years of imprisonment, so that by the time they complete 14 years, the process has been completed or is underway.

The high court explained, “The very fact that the Circular provides that the process shall start on completion of 13 years, the State does not want any convict to continue in jail after completing 14 years in the event the authority comes to the conclusion that he is required to be released.”

The 1992 policy, seen by ThePrint, also said that in order to initiate the process of remission, the inspector general had to get the opinion of the concerned district police officer, district magistrate, chairman of jail and the advisory board committee. After getting all these opinions, he had to then submit the proposal to the government.

According to the policy, before granting remission to life convicts, the state government would take into consideration the report of the advisory board, the report of the inspector general and the convict’s behaviour in jail.

This circular, however, was just a two page document, and did not mention the factors and exceptions that have to be taken into consideration while considering the application of a convict for remission.

Over the years, the Supreme Court stepped in, pointing out the “procedural checks” that already exist in law to check “arbitrary remissions”.

In a landmark judgment passed in 2012, it had asserted that remissions cannot be suo motu by the state — as is the case in the 1992 policy — and that they need to be initiated by the convict himself or by someone on his behalf

It also clarified that the prisoner has no “indefeasible right to release on completion of either fourteen years or twenty years imprisonment”. The court asserted that “a convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government”.

The Gujarat government’s 1992 policy needed to be changed to incorporate the Supreme Court’s guidelines and clarifications. The new policy — issued on 23 January 2014 — in fact, mentions the Supreme Court’s judgment. The latest policy also expressly bars the government from granting remission or premature release to prisoners convicted for a crime that was investigated by the Central Bureau of Investigation (CBI), and prisoners convicted for murder with rape or gang rape.

Therefore, if the applications of the convicts in the Bilkis Bano case were considered under the new policy, the state government would’ve been barred by its own policy from releasing them.

Why was the old policy considered

One of the convicts in this case, Radheshyam Bhagwandas Shah, aka Lala Vakil, approached the Supreme Court in March this year, seeking a direction to the Gujarat government to consider his application for premature release. He had pointed out that as of 1 April this year, the convicts had already spent 15 years and four months in jail.

In response, the Gujarat government had told the court that since the trial in this case concluded in Maharashtra, his application for premature release needs to be filed before the Maharashtra government. However, in a judgment passed on 13 May this year, a Supreme Court bench comprising justices Ajay Rastogi and Vikram Nath ruled that since the crime in this case was committed in Gujarat and ordinarily, the trial would’ve been conducted in Gujarat, 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 also explained that their application would be considered under the state government’s 1992 policy for state remission and premature release of prisoners. It said that this was because premature release needs to be considered on the basis of the policy prevalent on the date of the conviction.

Shah was awarded life imprisonment by a special CBI court in Mumbai in January 2008, along with ten others. At the time this judgment was passed, the 1992 policy was in effect.

It then directed the Gujarat government to consider Shah’s application for premature release within a period of two months, according to the applicable remission policy.

What does the law on remission say

Section 433 of the Code of Criminal Procedure (CrPC) allows governments to commute an imprisonment for life, to imprisonment of 14 years. In other words, it grants the Union and state governments power to reduce a person’s sentence.

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 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 power of granting remission is different from Constitutional powers of granting relief to convicts enjoyed by the President and the Governor. Articles 72 and 161 of the Constitution empower the President of India and the Governors of States to grant pardons or to suspend, remit or commute sentences in certain cases.

The Supreme Court has explained that when an action is taken under Section 433 of the CrPC, the approval of the President or the Governor is not needed. However, if an action is taken under Articles 72 and 161, the President’s or the Governor’s sanction is necessary, even though the two are bound by the advice tendered by the council of ministers.

In a judgment passed in 2000, the Supreme Court had laid down five grounds on which remission is considered: Whether the offence is an individual act of crime that does not affect the society; whether there is a chance of the crime being repeated in future; whether the convict has lost the potentiality to commit crime; whether any purpose is being served in keeping the convict in prison; and socio-economic conditions of the convict’s family.

(This is an updated version of the copy.)

(With inputs from Bhadra Sinha)

(Edited by Poulomi Banerjee)

Also read: In age of amnesia, it is easy to forget Bilkis Bano’s fight and the failure of chowkidars


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