More than two decades ago, humanity was shamed by the gruesome gang rape of Bilkis Bano and the merciless murder of 14 members of her family during the Godhra riots of 2002.
She witnessed her daughter being smashed to death in front of her eyes, her trusted neighbours violate her in ways beyond human imagination, and if this living nightmare wasn’t enough, she also became a spectator to the justice system trapezing from one end to the other.
The 8 January judgment by the Supreme Court of India imparted an occasion for Bano and women all over the country to “breathe again.”
The road thus far, however, was wrought with uncountable hurdles and setbacks — ceaseless re-victimisations, the brunt of conflicting judicial interpretations about the crime committed against her and the punishments thereof, and of course, the irreparable loss of loved ones.
From 2002 to 2022, Too Many Twists and Turns
The barbaric incident took place in 2002 and while the initial trial commenced in a district court in Gujarat, it was transferred to a special CBI court in Maharashtra upon Bano’s application, fearing tampering of evidence and interference with the trial. The Maharashtra court in 2008 convicted the 11 accused and gave them life sentences. The conviction was upheld by the Bombay High Court and later by the Supreme Court in 2017. The Supreme Court also ordered a compensation of Rs 50 Lakhs to Bano in the 2017 judgment.
15 years after the conviction, one of the convicts approached the Supreme Court seeking remission, which according to section 432 of the Code of Criminal Procedure (CrPC), 1973 gives the Court the power to suspend a part or the whole of a punishment. Interestingly, the petitioners had also unsuccessfully approached the Gujarat High Court with the same prayers.
In May 2022, a two-judge bench allowed the petition and ordered the Gujarat government to consider a policy for remission for the petitioner and the other convicts in this case. Accordingly, the Gujarat government in August 2022 released all 11 of them on remission. Bano had challenged this order but the apex court dismissed this in December 2022.
The shocking visuals of the 11 convicts walking out of jail being garlanded and felicitated unsettled our conscience but six women took it upon themselves to set the record right. Through parallel public interest litigations (PILs) filed respectively by politicians Mohua Moitra and Suhasini Ali, professor Roop Rekha Verma, journalist Revati Laul, and IPS officer Meeran Chadha Borwankar, the May 2022 decision of the apex court was challenged.
However, when the maintainability was called into question, Bano stepped in once again and filed a review petition before the Supreme Court in November 2022. The Bench of Hon’ble Justices B V Nagarathna and Ujjal Bhuyan pronounced the current judgment in this petition along with the other PILs.
The Remission Order Reflected a ‘Lack of Care’
Overturning the May 2022 order, the current Bench quashed the remission and ordered the 11 convicts to return to jail within two weeks. This is a watershed moment in the history of criminal justice in India wherein not only has a previous order of the apex court been reversed by a succeeding bench, but also the order has been proclaimed as “null and void” on grounds of “misrepresentation of facts and fraud.”
The convicts are guilty of not just an individual crime but a crime against humanity and while the Indian prison system operates on restorative and not retributive principles, upholding their life sentences was exigent to ensure that women’s safety and dignity in this country was not eroded completely.
The recent order quashed the remission order on the ground that the Gujarat government had no jurisdiction over the case at hand since, under the definition of “appropriate government” under section 432(7)(b) of the CrPC, was the government within whose territory the offender was sentenced.
Accordingly, it would squarely fall within the jurisdiction of the Maharashtra government and the remission order by the Gujarat government thus reflected a “usurpation of power”. The CrPC explicitly excludes the place of occurrence of the crime or place of imprisonment and the Court observed that on “that short ground alone, the order of remission must be quashed.”
The Court also unearthed other irregularities in the case when it questioned why the material facts related to the previous order of the Gujarat High Court, which explicitly stated that the Gujarat government had no jurisdiction or the negative opinions of the Mumbai special court or the CBI, were not mentioned in the 2022 petition.
The then petitioners had also suppressed the fact that complying with the Gujarat High Court, they had initiated proceedings before the government of Maharashtra. In light of such misconduct, the current bench vitiated the May 2022 order and all procedures that emanated from it.
Is Remission a Fundamental Right?
In the context of India’s rehabilitative prison system, remission is an important tool underscoring the principle of natural justice. In fact, it is a constitutional entitlement. While several petitions including the May 2022 one had correlated the right to personal liberty under Article 21 with the right to remission, no judicial precedent exists to affirm the same. Prison being a state subject, the remission rules vary according to state policies. In the impugned Gujarat government order, the policy relied upon was the 1992 policy which however has been replaced by the 2014 policy.
The general law on remission hails from the 2000 Supreme Court case of Laxman Naskar vs. State of West Bengal which sets out specific conditions against which an order of remission must be evaluated. It includes whether it is an individual crime or affects the society at large, change in the convicts’ criminal potentiality or recidivism, socio-economic conditions of the convicts’ family, and if there was any fruitful purpose served by the prolonged incarceration.
It must be noted that pursuant to section 433-A of the CrPC, remission prayers can only be made after 14 years of imprisonment in case of life sentences. So, although not a fundamental right, remission is a constitutional right of citizens. However, remission does have nuances and strong implications in the milieu of criminal justice reforms in India and it will be parochial to examine remission petitions through generalisations and overbroad categories.
In the current case, the severity of the crime and the fact that none of the convicts paid any of their fines towards the victim's compensation highlighting their lack of remorse emphasise the need for close case-to-case scrutiny before granting remission. However, one must not fall prey to any blanket categorisation because Indian jails abound in cases of unduly prolonged imprisonment for crimes far less.
So, while Bano’s rapists unequivocally do not deserve the mercy of remission as rightly held by the current judgment, courts should steer clear of any conservative interpretation of this judgment while dealing with remission applications and denying justice where due.
(Yashaswini Basu is a Bengaluru-based lawyer. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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