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Assessing ‘Legality’ in Bilkis Bano Case

  • Category
    Polity & Governance
  • Published
    27th Aug, 2022

Context

Eleven men, convicted of life imprisonment for gang-raping Bilkis Bano and murdering her family members during the 2002 Gujarat riots, walked out of Godhra sub-jail after a panel approved their application for remission.

Background

Background (The Bilkis Bano Case)

  • The accused in the case were arrested in 2004 and the trial began in Ahmedabad. Later, the apex court transferred the case to Mumbai.
  • On 21 January 2008, the Special CBI Court sentenced 11 accused to life imprisonment on the charges of conspiring to rape a pregnant woman, murder, and unlawful assembly under the Indian Penal Code.
  • In 2019, the Supreme Court awarded compensation of 50 lakh to Bilkis — the first such order in a case related to the 2002 riots.
  • This latest decision is now criticized as a "tragic reflection of India's halting progress in addressing violence against women".

This brief aims to dissect the legality of the premature release of convicts while tracing the development of the law of remission in India.

Analysis

Determining the ‘legality’ of the grant of remission to the convicts

  • Is the Gujarat Government the "appropriate government" as per Section 432(7) of the CrPC to grant remission?
    • The Supreme Court, in Radheshyam Bhagwandas Shah v. the State of Gujarat, held that the "appropriate government" was the one where the offence took place.
  • Is the Centre's concurrence necessary in cases of remissions?
    • Section 435 of CrPC states that in a case where an investigation is carried out under any Central Act by a central agency (such as CBI in the present case), no order of remission can be passed by the State Government unless concurrence has been produced by the Central Government.
      • Section 435 makes consultation with the centre mandatory.

What are the other areas of concern?

  • Overruled the Supreme Court: One of the convicts had obtained an order from the Supreme Court in May 2022, under which Gujarat, the State in which the crime occurred,was held to be the appropriate government to consider his premature release.
  • Violating Remission norms: Under the 2014 norms, a person convicted for gang rape and murder cannot be released prematurely.
    • As the life sentence normally means that a convict has to spend the natural life in prison.
    • The Code of Criminal Procedure (CrPC) permits premature release in the form of remission or commutation, but it should be based on a legal and constitutional scheme, and not on one’s discretion.

What is remission?

  • Remission implies reducing the period of a sentence without changing its character
  • Indian laws provide pardoning power sourcing from statutory and constitutional authorities.
  • As per law, there are three kinds of remissions —
    • Constitutional
    • Statutory
    • Those earned in accordance with jail manuals
  • Sections 432 and 433 of the Code of Criminal Procedure (CrPC) lay down rules for the State governments to suspend or remit sentences.

What are the Constitutional Provisions related to remission?

  • While Article 72 of the Constitution empowers the President to grant remission, Article 161 vests similar power with the Governor.

Prison is a subject under the State List of the Seventh Schedule of the Constitution, and the management and administration of jails fall under State governments.

Legal Provision related to remission:

  • Section 432 of CrPC empowers the ‘appropriate government’ to suspend or remit the sentence of a prisoner.
  • Section 433Aof CrPC which deals with the power to commute sentences, however, states that a prisoner shall not be released before 14 years of undergoing sentence in the case of two kinds of life convicts:
    1. those found guilty of an offence punishable with death.
    2. those whose death sentences were commuted to life imprisonment under Section 433.
  • Section 435 states that in certain cases, the States have to act in consultation with the Central government.
    • These include cases investigated by the Delhi Special Police Establishment, or by any agency that has investigated an offence under a Central Act other than the CrPC.

The Powers of remission, commutation, and Pardon in the hands of the state government are applicable only to Convicted persons and not in trial cases.

Are State Governments permitted to release convicts?

  • Section 432 of the Code of Criminal Procedure allows state governments to grant remission to convicts, which means, a State government can release a prisoner prematurely if it so desires.
  • This provision is legal because, in cases of remission, only the way the sentence is carried out is changed.
  • Thus, remission only means that the execution of a sentence is handled differently and it does not imply that a person's conviction is overturned.
  • It is pertinent to note, however, that the exercise of the power of remission is in itself subject to judicial review.

Implications:

  • On the Victim related to the case: The victim (in this case) Bilkis Bano, has not only suffered the assault of rape but also the loss of her child. It may shake her faith in justice, and the ripple effect may set in motion affecting other women who are struggling in courts for justice.
    • Her safety and well-being may get compromised due to the release of the convicts.
  • On Convicts: The 11 people who got released by the Government may transfer a wrong message to society and can create further hatred against the minority communities.
  • In society at large: Society will affect the most by the incident, as the rights and sex-based violence in the country may be provoked further.
    • It is possible that, technically, the government is within its rights to release murderers and rapists, but it goes against the spirit of the Centre’s current guidelines

Associated Challenges:

  • Political Interests: Political interest linked to the convict’s remission is a prominent provision in the political dynamics of the country.
  • Nepotism: Many times, nepotism is found as one of the key reasons for remission and other grants in India.
  • Flexible consultation provisions: The state governments without consultation with the Union government are allowed to provide remission but under specified reasons and without violating the Article 14 norms.
  • Ineligible for premature release: As in most States, Gujarat’s current remission policy (it adopted a new and revised remission policy for prisoners in 2014), makes those convicted of rape ineligible for premature release.
  • Inconsistencies in remission policies: The inconsistencies observed while processing remission pleas of the convicts highlight the sense of inequality perceived by the victims.

Conclusion

It is an event of concern for India’s democracy and it also questions equal and fair Justice to all, as the release of convicts challenges the rights of minorities, promotes Gender-related crimes, and even against the fundamental Rights of an individual.

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