This article has been written by Mr. Mustafa Khan, a 1st year LLB student, at Integral University.
Introduction
The Bilkis Bano tragedy is a frightening reminder of India’s dark past, when communal violence and brutality were prevalent. The case drew national attention because it showed the horrible crimes committed against innocent civilians, especially women and children, during the gujarat riots in 2002. The case also highlighted the need of giving justice to victims of such violence, as well as the difficulties in doing so.
In 2008, a trial court sentenced 11 people including a police officer to life in prison for their roles in the rape and murder of Bilkis Bano’s family members and neighbours. The verdict was viewed as a win for justice and an indication that the criminal justice system could achieve justice even in the most terrible situations. However, on august 15 2022, the 11 convicts were released from jail following a decision by the gujarat government to grant them remission after the completion of 14 years of a sentence when a writ in petition was filed by a prisoner, Radheshyam Bhagwandas shah lala vakil, seeking direction to the state of gujarat to consider his application for pre mature release under the policy in effect at the time of his conviction. The decision to acquit the inmates prompted a fiery debate with many doubting the court system’s integrity and the message it sends to perpetrators of communal violence. Some argue that the decision is a travesty of justice and a betrayal of the victims and survivors who have waited for justice for years. Others on the other hand, argue that the decision was based on legal principles and the presumption of innocence and that the burden of proof was not met.
Legal Framework
There is no clear definition of a life sentence in Indian criminal law therefore when should we use the word life sentence whether it be the remainder of natural life or a set number of years? To make matters worse section 57 of the Indian penal code IPC defines life imprisonment as imprisonment for up to 20 years.
Following that, section 432 of the code of criminal procedure (Cr Pc) states that
A state government may commute a convict’s sentence and release him when the sentence is commuted. Furthermore, section 433(B) of the criminal procedure code states That without the approval of the person condemned an appropriate authority may commute a sentence of life imprisonment imprisonment for a term not exceeding 14 years or fine section 433 a of the Cr Pc states that anyone sentenced to life imprisonment may be released only after serving at least 14 years in confinement. Keeping the above mentioned gist in mind, we do have an understanding of the aspect of determining a life sentence but we are still stuck in a stalemate as to what the actual determination of the same is. However, keeping the topic at hand in mind our confusion is not limited to the number of years after which a life convict can be released.
Rather it is the question of whether the state government releases a life convict based on set parameters after the defined number of years. The response to the latter is yes because there is no doubt about it under India’s penal code. According to the Gujarat government’s petition to the Supreme Court, it was the Ministry of Home Affairs (MHA) that permitted the release of eleven individuals convicted in the Bilkis Bano case. Despite resistance from a special court and the Central Bureau of Investigation (CBI), their discharge was approved. According to court documents, the premature release application was initially filed on February 23, 2021. In a letter dated March 11, 2021, the CBI, the Superintendent of Police, and the SCB, Mumbai, urged against the convicts’ release. According to NDTV, the CBI claimed that the accused’s act was heinous, serious, and grave and that neither the guilty nor anybody else involved should be given a break from their sentence. After that, in a letter dated March 22, 2021, Special Judge (CBI) also rejected the release. According to NDTV, Special Judge Anand L. Yawalkar wrote to the Superintendent of the Godhra Sub-Jail that all of the defendants in this case were found guilty of raping and killing innocent people. That the accused had no animosity or connection to the victim. The crime was committed only because the victims practised a certain religion. Even minor children and pregnant women were not spared in this situation. This is the most heinous sort of hate crime and a crime against humanity. However, the Superintendent of Police Dahod, Gujarat, stated in a letter dated March 7, 2022, that he had no objection to the prisoners’ premature release. In another letter dated March 7, 2022, the Collector and District Magistrate of Dahod stated that he had no objections. The Superintendent of the Godhra Sub-Jail also stated that he had no objections. On May 26, 2022, the Jail Advisory Committee unanimously recommended the offenders’ early release. Following this, on June 9, the Additional Director General of Police, Prisons, and Correctional Administration in Ahmedabad wrote to the Gujarat Home Department, stating that he, too, had no objections to the release. On June 28, 2022, the Gujarat Home Department wrote to the MHA, suggesting the release and requesting approval/suitable directives. Just two weeks later, on July 11, the MHA approved the release in a letter to the Gujarat Home Department. Radheshyam Shah petitioned the court for sentence reduction after serving 14 years in prison. The Gujarat High Court, however, denied his request, holding that Maharashtra, not Gujarat, was the proper government to handle his case under sections 432 and 433 of the Code of Criminal Procedure. The Supreme Court then determined in May that Gujarat was the proper state to hear Shah’s case. Sujal Mayatra, the Panchmahals Collector, claims that the committee assembled to evaluate the petition for remission unanimously decided to commute the sentences of all 11 defendants in the case. Jaswant Nai, Govind Nai, Shailesh Bhatt, Mitesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Bakabhai Vohania, Rajubhai Soni, Pradeep Mordhiya, and Ramesh Chandana are among the prisoners who were granted remission. They are all residents of Randhikpur, a Gujarati village located in the Daud district. They were all familiar to Bilkis Bano and her family; some were neighbours, while others did business with them. On August 15, 2022, as India celebrated its 75th anniversary of independence, these criminals stepped out of jail and were greeted with garlands by their family and friends. Outrage ensued, and many legal luminaries and civil society members puzzled how remission for terrible crimes like gang rape and mass murder was allowed. The judge who convicted the eleven individuals, Justice UD Salvi, told Bar and Bench, “A very bad precedent has been set.” This is, in my opinion, incorrect. Convicts in other gang rape cases are also seeking similar relief.” Then, nearly 9,000 people from various walks of life in Mumbai signed a petition urging the Supreme Court’s Chief Justice to reverse the decision to grant remissions. Then, according to an NDTV investigation, at least five members of the Advisory Committee that recommended the release are allegedly linked to the Bharatiya Janata Party (BJP). According to an official document that identifies the members of the advisory group, two BJP MLAs, a member of the BJP state executive committee, and two others who are also affiliated with the party were among them. Meanwhile, some of the eleven convicts were not living in their homes after their release, according to a report by journalist Barkha Dutt’s digital news platform Mojo Story. Some convicts’ families said they were on pilgrimage, but no one knew where they were or when they would return. This is relevant in view of the current Supreme Court hearings. If the court reverses the judgement to award remission, the men must be identified so that they can be re-incarcerated.
Injustice upon injustice
On April 23, 2019, the State was ordered to compensate Bano not just Rs 50 lakh in compensation, but also to provide her with work and housing. Despite multiple reminders and orders to pay Bano what she is owed, the government allegedly failed to do so until forced to do so by the Supreme Court. It should be noted that the sum was granted to Bano only after the Supreme Court issued an order on September 30, 2019, requiring her to pay reparations within two weeks.
However, it appeared that the government was attempting to shortchange her for the remainder. Instead of living quarters, Bano has been assigned a 50-square-meter plot in a garden zone. Instead of a regular government employment, she has been granted a contract-based peon position with the Irrigation Department on a specific project!
Bano said she was unhappy with the State’s adherence to the court’s verdict in an interlocutory application she filed with the Supreme Court in October 2020. Bano was then advised to contact the appropriate authorities and seek compensation for her losses by a bench made up of Chief Justice SA Bobde, Justices AS Bopanna, and Justice Ramasubramanian. Bano withdrew her application, albeit she had the chance to make a defence.
Previously, in July 2020, some of the accused who were on parole allegedly assaulted and intimidated a witness in the case. This came after the witness attempted to stop them from beating two women in a different incident.
Words of support for Bilkis Bano
Several people and rights organisations have come forward in response to the shocking release of the prisoners to call for justice for Bano. Women’s rights group Bebaak Collective released a statement denouncing the Gujarat government’s policy of remission. The Collective praised Bilkis Bano for persevering “despite systemic adversities” and now giving in to pressure. Bano, a fearless and brave survivor of the attempted genocide of Muslims in Gujarat in 2002, has had a difficult 20-year journey trying to ensure justice is served against the men who wronged her. Can sexual assault survivors still have faith in the system? they questioned. Teesta Setalvad, a human rights advocate, is in jail for aiding Zakia Jafri and other survivors of the Gujarat genocide in their quest for justice, while Bilkis Bano’s rapists are free. They asserted this while providing more examples of injustice, notably directed towards women.
“We support Bilkis Bano.” We support Zakia Jafri. We support Teesta Setalvad. And we stand with all survivors of violence and discrimination,” they asked, “the authorities to annul the rapists’ release orders and ensure that Bilkis’ life and liberties are protected from further threats by the rapists and their political supporters.”
The release suggested by the committee under the Gujarat remission policy is against the Union Government’s remission rules, according to a statement from the All India Working Women Forum (AIWWF), a division of the All India Trade Union Congress (AITUC). In order to be eligible for remission, persons who have been found guilty of rape or murder are exempt from these requirements. They don’t justify consideration for an early release by any means. While opposing the release, the AIWWF-AITUC urges the Union government to take immediate action to stop the release of these criminals, including rapists and murderers.
More indignation is being generated by the rapists’ early release than by the pregnant mother Bilkis Bano’s gang rape and the horrible murder of her family, including her three-year-old daughter, they said. The notion of justice and the obligation of the constitution to safeguard women are both slapped in the face by this release. The release of rapists and murderers is viewed as nasty, outrageous, and condemnable by the All India Working Women Forum of the AITUC, and they demand an immediate and unconditional retraction of the offenders’ release and reincarceration.
Conclusion
According to the facts of the case, Bilkis Bano endured significant mental and psychological pain, as well as the loss of several family members, in the atrocious attack during the Gujarat riots. While the decision to release the convicts was legal, it is deeply troubling from a moral standpoint. Bilkis bano has been left without any sense of closure or justice as a result of the convicts acquittal which is critical for her healing and recovery. The decision to free the inmates sends a message to perpetrators of communal violence that they can avoid accountability and punishment which is a dangerous precedent for any society.
Furthermore the release of the convicts may exacerbate communal tensions and distrust between communities. It may instill a sense of injustice and animosity in the victims and their families potentially leading to more violence and conflict.
To summarise, while the decision to free the inmates was founded on legal reasons, it is highly problematic from a moral standpoint. It calls into question the legal system s ability to administer justice to victims of communal violence and highlights the need for increased accountability and openness in such cases. Finally, justice for Bilkis Bano should include not only punishing the guilty but also providing her with closure and healing from the trauma she has endured.
Reference
https://legalserviceindia.com/legal/article-9612-right-to-justice-bilkis-bano-case.html
https://www.legalserviceindia.com/legal/article-4069-access-to-justice.html
https://www.nytimes.com/2022/08/20/world/asia/india-rape-muslim-hindu.html