All the 11 convicts sentenced to life imprisonment in the 2002 Bilkis Bano gang rape case walked out of the Godhra sub-jail after the Gujarat government permitted their release under its remission policy. A special CBI court in Mumbai sentenced all the accused in 2008 on the charge of gang rape and murder of seven members of Bilkis Bano’s family. Their conviction was also upheld by the Bombay High Court.
These convicted prisoners were languishing for more than 15 years in jail, after which one approached the Supreme Court with a plea for his premature release. But, the Supreme Court directed the Gujarat government to look into the issue of remission of his sentence. The question here is how these convicts were released despite heinous crimes and do the state governments have the power to remit or release such convicts. Let’s discuss this in our article.
Timeline of Bilkis Bano Case
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In 2002 Bilkis Bano’s family members were attacked by a mob at Randhikpur village in Limkheda taluka of the Dahod district during the post-Godhra riots (the burning of the Sabarmati Express coach, violence had erupted).
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Bilkis Bano, who was five months pregnant then, was gang-raped, and seven members of her family were assassinated. The accused in the case were arrested in 2004.
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The trial began in Ahmedabad. When Bilkis Bano expressed her concerns that witnesses could be harmed and the evidence collected by the CBI was tampered with, the SC transferred the case to Mumbai in August 2004.
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The special CBI court in 2008 sentenced the eleven accused to life imprisonment on the charge of gang rape and murder of seven members of Bilkis Bano’s family.
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It was the first riot case to be transferred out of Gujarat to Mumbai by the Supreme Court.
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In 2018, the Bombay High Court upheld the conviction of the 11 accused.
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One of them, Radheshyam Shah, had approached the Gujarat High Court seeking remission of the sentence under sections 432 and 433 of the CrPC.
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The High Court dismissed his plea while observing that the “appropriate government” to decide about his remission is Maharashtra and not Gujarat.
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Shah (accused) then filed a plea in the Supreme Court pleading that he had been in jail for 15 years and four months without remission as of April 1, 2022.
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In its order dated May 13, the top court stated that since the crime was committed in Gujarat, the state of Gujarat was the appropriate government to examine Shah’s application.
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The SC directed the Gujarat government to consider the application for premature release in the policy dated July 9, 1992 and may decide within two months.
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How the accused in Bilkis Bano's rape case released?
Bilkis Banu Case convicts had been released as per the 1992 remission policy prevalent in Gujarat at the time of their conviction in 2008. The 2014 govt.'s revised policy would have made this remission impossible, but following the Supreme Court's order, they have been remitted as per the 1992 policy.
The remission of sentences in India is governed by constitutional, statutory, and state policies:
Constitutional Power of Remission: Articles 72 and 161
Statutory Power of Remission: Sections 432 and 433, 433-A of CrPC
State Policies: Example-1992 Remission policy
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In Bilkis Bano's case, statutory power and state policies have made remission of these convicts possible. The Centre had issued special guidelines to states for releasing convicted prisoners as part of the Azadi Ka Amrit Mahotsav celebrations. But, Per the 1992 policy, rape convicts were not entitled to premature release from jail.
Then how come these rape convicts are released?
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The 1992 policy was quoted in a 2012 Gujarat High Court order. It stated that the circular “pertains to the early release of the life convicts who on and after 18.12.1978 have served out 14 clear years imprisonment”. So, Shah’s (accused) petition in the SC stated that as of April 1, 2022, he had undergone a sentence of more than 15 years and 4 months without remission, thus making them eligible for remission, especially on this ground.
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The rape convicts are released per Section 432 CrPC (statutory power of remission) and the 1992 remission policy (concerning guidelines issued under ‘Azadi ka Amrit Mahotsav,.’) combined. That is;
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According to Gujarat's Additional Chief Secretary, Home, Raj Kumar, the Supreme Court had asked the government to consider the early release of these 11 convicts under the 1992 state’s remission policy, which was in effect when they were pronounced guilty in the case by the trial court.
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According to the guidelines as part of ‘Azadi ka Amrit Mahotsav,’ on the occasion of the 75th independence day, those eligible for remission will include women convicts and transgender convicts of 50 years of age and above who have completed 50% of the total sentence period, male convicts of 60 years of age and above, Physically challenged/disabled convicts with certified 70% disability who have completed 50% of their total sentence period, etc.
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The 11 convicts have already spent 15 years of imprisonment as part of life imprisonment, and considering other factors, they are remitted. (sentence reduced, and they are released).
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A committee was even formed back for the same and took a unanimous decision in favor of remission of all the 11 convicts in the case. The recommendation was sent to the state government for their release.
Other factors considered for remission are likely to be life imprisonment term in India, which is typical of 14 years or more, age, the behavior of the person, and so on. The remittance application was considered on merit. It is also under the domain of the state government.
Can the state government remit convicts?
Under Section 432 CrPC- “when any person has been sentenced to punishment for an offense, the appropriate government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.”
Under Section 433-A CrPC, "The power of remission is to be exercised by the state government, as an appropriate government, if the prisoner has undergone 14 years of actual imprisonment in cases falling within the scope of Section 433-A of the Code and in case the imprisonment is less than 14 years, the power of premature release can be exercised by the Hon’ble Governor though on the aid and advice of the State Government. Under these circumstances:
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A prisoner can be released prematurely if the state government so desires. But the exercise of this power is subjected to judicial review.
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One basic principle of Indian sentencing jurisprudence is that the executive cannot alter or modify a sentence passed by the court.
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However, the remission of a sentence under section 432 does not affect the above principle as the execution of the sentence is being altered.
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Remission does not mean that the person’s conviction is set aside, just that the execution is treated differently.
Remission by state govt. are subjected to judicial review.
2002 Gujarat Riots Case
On 27th February 2002, the Sabarmati Express was returning from Ayodhya to Ahmedabad and stopped near the Godhra railway station. The passengers therein were Hindu pilgrims coming back from Ayodhya. An argument started between the train passengers and the vendors on the railway platform, which later became violent. Under uncertain circumstances, four train coaches caught fire, with many people trapped inside. In the resulting conflagration, 59 people (9 men, 25 women, and 25 children) were burned to death. Following the attack on the train, the Vishva Hindu Parishad (VHP) called for a statewide strike. The Supreme Court had declared such strikes to be unconstitutional and illegal.
The- then Chief Minister Narendra Modi declared that the attack on the train had been an act of terrorism, not an incident of communal violence. Local newspapers and members of the state government used the statement to incite violence against the Muslim community by claiming, without any proof. In the aftermath of this violence, it became clear that many attacks were focused on Muslim populations and Muslim women and children. Organizations such as Human Rights Watch criticized the Indian government and the Modi- led Gujarat state administration for failing to address the resulting humanitarian condition of victims who fled their homes for relief camps during the violence.