Come What May, No Remission in Heinous crimes like Rape and Murder
By Noor UL Shahbaz
On Monday, August 15, the Gujarat government released eleven convicts who had been sentenced to life imprisonment in the Bilkees Bano gang rape and murder case during the 2002 Gujarat communal riots. The convicts walked out of the Godhra Sub-jail after the Gujarat government approved their application for remission. Following their conviction on January 21, 2008 by a special Central Bureau of Investigation (CBI) court in Mumbay, the eleven men were sentenced to life imprisonment on charges of gang rape and the murder of seven members of Bilkees Bano’s family – including a 3 year old. The Bombay High Court upheld the conviction, and the convicts had served over fifteen years in jail when one of them, Radheshyam Shah, approached the Supreme Court seeking premature release. In May 2022, the top court directed the government of Gujarat to look into the question of remission since the crime was committed in the State and post-trial proceedings such a remission should be considered in terms of the relevant State’s policy.
According to “The Hindu”, this 1992 remission policy was quoted in a 2012 order of the Gujarat High Court, and “pertains to the early release of the lofe convicts who, on and after 18-12-1978, have served out fourteen clear years imprisonment”. A bench headed by Justice Ajay Rastogi allowed the accused’s application for the State government to consider his release as per the Gujarat remission policy as on july 9, 1992. Holding that this was the policy in effect at the time of Shah’s and the other accused’s conviction, the Court observed, “it has been settled by this court in State of Haryana versus Jagdish, that the application for grant of premature release will have to be considered on the basis of the policy which stood on the date of conviction”. Following this order, a committee headed by the Panchmahals Collector, Sujal Mayatra, was formed. The committee thereafter too a unanimous decision to release all eleven convicts. The State government approved this decision. Since law and order, policy and prisons are State subjects as per the Seventh Schedule of the Indian Constitution, the Code of Criminal Procedure (CrPC) under section 432 grants State governments the power to remit sentences. However, under section 435 of the Code of Criminal Procedure (CrPC), consent of the Union government is a necessary prerequisite for the premature release of the prisoners, particularly in cases where the offence was investigated by a central agency such as the CBI. This was also upheld by the Delhi High Court in a 2021 judgment which said that the Union governments consent was mandatory before proceeding with remission under section 435 of the Code of Criminal Procedure (CrPC). Earlier in June this year, the Union Home Ministry had issued guidelines to States pertaining to the release of convicted prisoners under a special policy formulated as part of Azadi Ka Amrit Mahotsav on the celebration of 75 years of independence. As per the said guidelines, special remission want to be granted to prisoners on August 15, 2022, january 26, 2023 (Republic Day) and August 15, 2023. Notably, persons sentenced to life imprisonment and rape convicts are not entitled to be prematurely released as these guidelines.
Remission in this case and alike other cases pose several serious questions on the justice delivery system of this country. The first and the foremost question is that, Is remission permissible at this time when the new criminal jurisprudence has emerged in post-Nirbhaya era?
Secondly, assuming for a while that law and order is a state subject, even then, both the state and Union government policies should have been amended in the post-Nirbhaya era, especially when it comes to such heinous crimes against women.
Thirdly, there are two categories of remission. With regard to heinous crimes, remission is not a matter of righ and there are factors to be looked into such as, the crime, the nature of crime and so on.
Forthly, remission must focus on the impact on victims. The concern’s and safety of the victim is one of the factors to be looked into. Remission is a favour to be earned by the accused, the question here is, is the victim not a person to be called upon and notice served to her? If the Supreme Court itself in it’s order awarding Bilkees compensation of fifty lakhs by the the State government of Gujarat has noted that she and her husband have been running from pillar to post seeking safety, then this shows how vulnerable they are. Furthermore it must have been also considered that, the victim Bilkees had moved an application to the Supreme Court seeking transfer of trial outside Gujarat, after she received death threats, where she submitted that she was forced to change twenty homes in two years. Then in August 2004, the apex court shifted the trial of gang rape case from Gujarat to Mumbay. Even then the remission in favour of convicts is a black mark on Indian justice system.
Fifthly, it must be emphasised that there is a conflict between the Gujarat government’s and Union governments remission policies, that under section 435 of the Code of Criminal Procedure (CrPC), “state would have to consult the Union government. Does anybody know whether this was done, it should have been”. If consulted, then the Modi led Union government should not have given consent “as their vocal policy does not allow rapists to be given remission”.
Sixthly, the power of premature release given to the executive is, “meant to ensure an element of human or social justice, that may evade the letter of the law or the judicial process”. But we see that state governments routinely refuse a premature release, even in a crime done without premeditation, or where there is only a single act or a single victim. The release of the Bilkees convicts with such promptness in a case of gang rape and seven murders – that is, multiple premeditated crimes and that too during communal riots – therefore shocks the people’s conscience”.
Seventhly, in setting all eleven convicts free, the question is, “what was the social justice or human justice in this case to merit the same? One does want to see humanising trends in penology. But the stark truth is that people have been in jail or even on death row for decades without their pleas even being considered by courts or by the executive. That is also an important point why this recent release shocks and evokes condemnation”.
Noor UL Shahbaz,M.A, LL.M (GOLD MEDALIST),former Acting Principal at Sopore Law College can be reached at im1415151819@gmail.com
