Remission order on Bilkis Bano’s case 

Abstract

 

The Bilkis Bano case is one of the shockingly evil acts that happened in the Gujarat riots in 2002. As we see in India the most common crime which is suffered by women is rape. And the judicial approach towards rape cases is miserable in India. even filling a compliment for a victim’s family would be onerous, especially from an impoverished community. As we see Nirbhaya rape case the victim’s mother commented that she is happy that her daughter is dead due to the justice system in India in which her daughter was questioned and blamed. Every 13 minutes, a woman in India becomes a victim of rape, according to recent statistics. This alarming figure highlights the pervasive nature of sexual violence in the country. In fact, by the time you finish reading this article, another person across the nation would have already experienced this traumatic crime.  As such case, Bilkis Bano is A significant legal case that has had a profound impact on the pursuit of justice, human rights, and legal reforms within the Indian context. In these case, Bilkis Yakub Rasool { bilkis bano} was gang-raped when she was pregnant and the rest of her family members were murdered. The controversy in these case was the remission of the 11 convicts by the Gujarat government. And the remission order by the government was called into question by  Nagarathna and Ujjal Bhuyan.

 

Introduction.

 

THE   bilkis bano case is one of the most gruesome case in the history of India in which the victim faced the challenge of sexual assault and murder. This case revolves around the gangrape of Bilkis Bano when she was pregnant and the murder of her 14 family members. Bilkis Bano was only the surviving person left to file the case against the mob. This incident happened during the riot in Gujarat in 2002 on the Godhra train. Bilkis was brought to Limkheda police station, where a First Information Report (FIR) was filed. However, the crucial detail of her being raped was omitted from the report, and the accused were not identified despite her recognition of 12 individuals who were residents of Randhikpur. This heinous crime doesn’t only involve the violation of the bodily sovereignty of bilkis Bano but also her family members including children were butchered and killed. This case gained prominence not only due to the hilarious events but also due to the remission order given to the 11 convicts on August 15, 2022, by the government of Gujarat. The significance of this case extends beyond the shocking nature of the crime to encompass the protracted legal proceedings that unfolded subsequently. Bilkis Bano’s quest for justice was fraught with numerous obstacles, ranging from societal stigma to systemic flaws within the justice system

 

Timeline of the case.

 

In the wake of the Godhra train burning in February 2002, riots engulfed Randhikpur, forcing Bilkis and her family to flee. However, their escape was tragically cut short on March 3, 2002, when Bilkis, five months pregnant, was subjected to a brutal rape while 14 members of her family fell victim to a mob’s violence. Despite her identifying the perpetrators, the initial police response was inadequate, with the FIR failing to mention the rape and the culprits remaining unnamed.

Seeking justice, Bilkis turned to the Supreme Court in April 2003, prompting the transfer of the case to the CBI in December 2003. The ensuing investigation uncovered grim details, such as the discovery of skeletal remains with missing skulls. By April 2004, the CBI filed charges against 20 individuals, including police officers and doctors implicated in the cover-up.

In August 2004, the trial was shifted from Gujarat to Mumbai, where 11 individuals were sentenced to life imprisonment in January 2008. Appeals followed, leading to the Bombay High Court upholding the convictions in May 2017, albeit refusing to enhance the punishment. Meanwhile, Bilkis secured compensation and saw action taken against some of the accused police officers.

However, the saga continued as convicts sought remission, leading to RS Bhagora’s dismissal just before his retirement in May 2019. Subsequent appeals and legal battles ensued, with Radheshyam Shah’s case raising jurisdictional issues between Gujarat and Maharashtra. The situation reached a climax when, in August 2022, the Gujarat government granted remission to 11 convicts, including Shah. Bilkis swiftly challenged this decision in the Supreme Court, which, on January 8, 2024, overturned the remission, underscoring the enduring struggle for justice and the resilience of Bilkis Bano in her quest for closure and accountability.

 

What is remission?

 

The term remission is defined as remitting and releasing the accused from the punishment that they got for their act. in India, the president and the governor have the power to pardon, remit, suspend or commute the punishment of the accused under Article 72 and Article 161. These powers have to be used with the advice of the Council of Ministers. Under section 432 of the CRPC, the state government can remit any punishment given to the accused as a whole or part of the punishment. it should to noted that after the compilation of the 14 years of imprisonment then only the person would be eligible for remission as per article 433A of criminal procedure court.

 

Landmark Cases of Remission

 

The January 8 judgment was significant as it highlighted a serious procedural irregularity by the State government—the failure to file a review petition before the Supreme Court. This omission was deemed as a usurpation of power by the State government, suggesting a hidden agenda in the case.

The court candidly acknowledged its oversight in not considering previous binding judgments delivered by Constitution benches of the Supreme Court. However, it refrained from addressing whether institutional remedies were needed to prevent such errors from recurring in the future. This raised the question of whether the court should develop mechanisms for self-correction to avoid similar mistakes, given the high stakes involved in every case.

Referring to the Union of India vs V. Sriharan @ Murugan & Others (2015) case, the judgment stated that except for cases falling under Section 432(7)(a), the appropriate government for the remission of sentences is the one within whose territorial jurisdiction the offender is sentenced or the sentence is passed. Since the convicts in the Bilkis Bano case were sentenced by the High Court in Maharashtra, the Maharashtra government is the appropriate authority for remitting their sentences.

Moreover, citing the Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr (1966) case, the judgment emphasized that judicial orders passed by High Courts concerning pending proceedings are not subject to correction by the Supreme Court under Article 32. This principle, being the law of the land, is binding on all courts, including benches of lesser coram within the Supreme Court

 

How did the remission orders come to be passed?

There are two remission policies applicable in Gujarat:

      1. 1992 Remission Policy: This policy was based on the good behaviour and conduct of the accused after serving a significant number of years in prison. It was relatively lenient and did not have stringent statutory limits7.

      1. 2014 Remission Policy: Following the Nirbhaya incident, the Supreme Court nullified the existing policy and directed the Gujarat government to formulate a new policy with added restrictions in the public interest. This policy specifically outlined reasons to not grant remission to those convicted of gang rape and murder

    After spending 14 years in prison, convict Radheshyam Shah appealed for remission, initially with the State of Gujarat. However, it was ruled that the appropriate government for considering his remission would be the government of Maharashtra, where the trial took place. Instead of approaching Maharashtra, Radheshyam Shah challenged this jurisdictional finding and brought the matter to the Supreme Court.

    During the hearings in April-May 2022, both Radheshyam Shah and the Gujarat government failed to disclose crucial facts to the Supreme Court. This included the strong opposition to remission by the trial judge, Judge UD Salvi, and the prosecuting agency, the CBI when consulted on the matter. This concealment of vital information misled the Supreme Court into deeming the Gujarat government as the jurisdiction responsible for responding to the remission plea.

    In a coordinated effort, 10 other convicts also submitted remission pleas to the State of Gujarat, purportedly under Section 432 of the Code of Criminal Procedure (CrPC). On August 15, 2022, during Independence Day celebrations, the Gujarat government granted remission to all 11 convicts who were sentenced to life imprisonment. They cited the convicts’ “good conduct” while incarcerated as the basis for early release, following an order dated August 10, 2022  And  followed the 1992 remission policy .

    Subsequent media investigations revealed that the released convicts had been granted excessive parole days by prison authorities, undermining the seriousness of their incarceration. Furthermore, it was discovered that key members of the committee appointed by the Gujarat government to consider remission applications were affiliated with the ruling BJP party. Additionally, one of the convicts had been booked for a gender violence case while on parole in 2020.

    In response to these developments, Bilkis Yakub Rasool, a victim of the crimes committed by these convicts, filed a writ petition under Article 32 of the Constitution of India. The petition sought to quash the orders dated August 10, 2022, issued by the State of Gujarat that prematurely released the convicts involved in the Mumbai Sessions Case No. 634 of 2004. This legal action was taken to challenge the questionable remission decisions and seek justice for the victims of the heinous crimes perpetrated by these convicts.

     

    The Recent decision of the court 

     

    The Supreme Court Bench overturned the remission order for all 11 convicts, citing two key reasons for their decision. Firstly, they clarified that according to the Criminal Procedure Code, the “appropriate government” for considering remission is the state where the trial and conviction took place. Bilkis Bano and others argued that since a Special Court in Maharashtra convicted the 11 men, Maharashtra should decide on remission. The Gujarat government, however, argued based on territorial jurisdiction, claiming that as the convicts were in a Gujarat prison, their behaviour was better known to Gujarat authorities. However, the Bench rejected this argument, emphasizing that the appropriate government is determined by the state of sentencing, as per Section 432(7) of the CrPC.

    Secondly, the Bench criticized the Supreme Court’s May 2022 order, finding it flawed due to misleading information provided by one of the convicts, Radhe Shyam. He misrepresented facts to the Court, falsely claiming a disagreement between the Bombay High Court and the Gujarat High Court regarding his remission. Additionally, the Supreme Court overlooked the 2016 Constitution Bench judgment in V Sriharan, which stated that the state where the trial occurred is the appropriate government for remission decisions.

    Despite Gujarat initially acknowledging Maharashtra’s jurisdiction over remission, they later took it upon themselves to decide, leading to criticism from the Bench for usurping Maharashtra’s authority. Ultimately, the Bench prioritized the rule of law over personal liberty, noting that the convicts had abused the legal process for remission. As a result, they directed the convicts to return to jail within two weeks of the judgment.

     

    Conclusion

     

    For Bilkis Bano, the judgment brought a sense of hard-earned relief after a challenging legal battle. In her statement, she expressed gratitude to the Supreme Court for upholding justice not only for herself but for women across the country, reaffirming the promise of equal justice for all. The Supreme Court needs to establish clear guidelines on remissions and pardons, ensuring that those responsible for granting them do so with a commitment to morality and justice. This should involve a comprehensive consideration of various aspects of the crime committed, reflecting a commitment to fairness and accountability.

     

    Frequently asked questions 

    What are the reasons for which remission can be granted? 

    In the case of Laxman Naskar v. Union of India (2000), the Supreme Court outlined the criteria to be considered before granting remission to prisoners. These include:

        1. Assessing whether the offence is an isolated act or has broader societal implications.

        1. Evaluating the likelihood of the prisoner reoffending in the future.

        1. Determining whether the prisoner still possesses the capacity or inclination to commit similar crimes.

        1. Reviewing whether the objectives of imprisonment have been effectively achieved.

        1. Considering the socio-economic status of the prisoner’s family members.

      These criteria aim to ensure that remission decisions are made thoughtfully, with due regard for public safety, rehabilitation, and societal well-being.

      Can the early release of a prisoner through remission be contested?

      In the recent case of Smt. Shireen v. State of U.P. (2022), the Allahabad High Court clarified that remission entails the early release of a prisoner before serving their full sentence. It is essentially a reduction of the sentence through administrative procedures. As such, the premature release of a convict via remission can be legally contested and challenged in a court of law. This ruling underscores the importance of judicial oversight and accountability in the remission process, ensuring that decisions are made following legal principles and safeguarding the interests of justice.

       

       

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