“The Gujarat government, granting remission to those convicted for gang-rape and murder in Bilkis Bano case, and looking away from the cases of Muslims convicted in the Godhra train burning case, exposes its dual standards,” Supreme Court Lawyer Paras Nath Singh told The Quint.
Last week, while granting bail to Farook -- one of the 31 convicted in the 2002 Godhra train burning case -- the Supreme Court had noted on 15 December that his role was that of stone pelting and he had already spent 17 years in jail for it.
Nearly two months ago, on 10 October, the top court had asked the Gujarat government to file an affidavit clarifying if Farook would be eligible under the government’s remission policy.
A bench of Chief Justice DY Chandrachud and Justice Hima Kohli had said in their order:
“In order to enable the Court to have a proper perspective of the matter, we grant an opportunity to the State of Gujarat to file a counter affidavit which shall also clarify the position on two additional issues, namely:
(i) The conduct of the applicant in jail; and
(ii) Whether the applicant would be entitled to the benefit of the remission
policy which has been framed by the State of Gujarat.”
It is worth noting that the government is yet to file an affidavit answering the court’s questions.
Meanwhile, the state government on 15 August this year, granted remission to 11 Hindu men convicted of gang-raping Bilkis Bano, who was pregnant at the time, and murdering seven members of her family, including her three-year-old daughter, during the riots following the Sabarmati Express fire in Gujarat's Godhra. The 11 had spent 15 years in prison at the time of their remission.
But Is It Fair To Compare These Two Cases?
Yes, on looking at the main charges mentioned in both cases.
Godhra Train Burning Case
> Farook was charged with IPC Sections 302 & 307 (murder and attempt to murder)
> His lawyers have repeatedly submitted in court that his role was that of stone pelting in the incident – something that the top court has noted while granting him bail
> The state, however, has said:
"He instigated the others, pelted stones and injured the passengers. Under normal circumstances, pelting of stones may be a less grave of an offence. But this is different."
> In March 2011, a trial court had convicted 31 persons of whom 11 were sentenced to death and the remaining 20 awarded life in prison. In 2017, the Gujarat High Court commuted the death sentence of the 11 to life-term and upheld the life sentence awarded to the other 20
> The appeals filed by the convicts in the Supreme Court have been pending since 2018
Bilkis Bano Case
> The convicts were charged under IPC Sections 302 (murder) and 376 (gang-rape)
> A special CBI court in Mumbai in 2008 had sentenced the 11 eleven accused to life imprisonment, and the conviction was later upheld by the Bombay High Court
Are the Train Burning Convicts Eligible for Remission?
Technically, they are as eligible as the 11 convicted in the Bilkis Bano Case.
And here’s the catch: the 11 in the Bilkis Bano case were granted remission under the state government’s 1992 policy and not the latest 2014 policy.
Annexure 1 of the 2014 policy clearly details out those who are ineligible for remission: including murder and rape convicts.
The 1992 circular, however, is unclear about these exclusions and mentions that the policy "pertains to the early release of the life convicts who on and after 18.12. 1978 have served out 14 clear years of imprisonment.”
"That (1992) policy did not have any specific clarity as to who can be given remission and who can not. That policy was not that detailed in comparison to the 2014 policy," Gujarat's Additional Chief Secretary (Home) Raj Kumar told news agency PTI in August this year.
But, why did Gujarat Govt go by the 1992 policy? After one of the convicts, Radheshyam Shah, had applied for premature release, the top court had opined that the 1992 policy is more relevant to them because that was the one in place at the time of their conviction in 2008.
‘Those Similarly Circumstanced are Entitled to Equal Treatment’
"Remission or pardon is not a matter of right, it is a matter of discretion. But here [in the Bilkis Bano Case] the discretion seems to have been exercised clearly on a communal tinge, just because the accused belonged to the majority committee and the victim was from the minority community," Advocate Tanveer Ahmed Mir pointed out to The Quint.
Notably, the Supreme Court had said in a 2021 judgment (Modified Voluntary Retirement Scheme of 2002 of Azam Jahi Mill Workers Association vs. National Textile Corporation Limited):
"Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals," and "...when the equals are treated unequally, there is a violation of Article 14 of the Constitution."
And had succinctly noted in 2020 (Arnab Manoranjan Goswami vs The State Of Maharashtra):
"Liberty is not a gift for the few."
The 2002 Godhra train burning incident and the communal riots that ensued, have gone down as one of the most devastating chapters in Indian history.
Following this, arrests from both communities (Hindu & Muslim) were made en masse. However, reacting to remission being granted to members only from the Hindu community, Mir questioned:
"Will the Gujarat government, exercising similar discretion, be willing to remit sentences of, and offer pardon to, the presently incarcerated Muslim accused?"
“The silence of the Gujarat government on the remission of those accused in the Godhra train burning case is telling. When the charges on paper are similar, granting remission to only one side reflects bias,” Advocate on Record at the Supreme Court Adeel Ahmed told The Quint.