Eleven persons convicted of multiple murders and gangrape during the Gujarat riots of 2002 walked free out of jail on August 15. These 11 had been convicted of the heinous crimes of gang-raping a pregnant woman, Bilkis Bano, and brutally killing her three-year-old daughter by smashing her head to the ground, and murdering six others on March 3, 2002. The story thereafter was one of great struggle to bring the guilty to book. The case had to be transferred out of Gujarat to ensure a fair trial, and it took six years for the CBI Special Court in Mumbai to convict the 11 and sentence them to life imprisonment in January 2008. The case continued its journey through appeals by the convicted persons and culminated only in 2019, when the Supreme Court upheld the trial court’s judgement. If a semblance of peace returned to Bilkis Bano’s life then, it has only proved to be short-lived, with her tormentors released from jail.
Their release came after one of the convicts approached the Supreme Court with a prayer that he had completed 15 years in prison and his case for premature release be considered as per the 1992 policy of the Gujarat government. The Supreme Court accepted the petition and issued direction to the Gujarat government to consider the application.
While convicting and sentencing criminals is a judicial function, executing that sentence and granting remission is an executive function. The power of premature release of convicts is exercised by state governments under Sections 432 and 433 of the Code of Criminal Procedure. The SC, in its various judgements, has held that the relevant policy for remission and release would be the state government policy as it existed on the date of conviction of the accused. From this point of view, the Gujarat government’s decision to release these 11 rapists and murderers as per its 1992 policy appears to be legally correct.
However, what is legal is not necessarily ethical or right from the societal point of view. The question arises as to whether the Gujarat government had no option but to release the convicts simply because of the 1992 remission policy. It is settled law that no convict has a right to be considered for premature release and that the power of reducing a convict’s sentence is discretionary.
The Supreme Court, in the case of State of Haryana vs Mahender Singh (2007), has held that no convict has a fundamental right of remission or shortening of sentence. The convict has only a legal right to be considered for remission.
In its judgement in State of Haryana vs Jagadish (2010), the Supreme Court had indicated certain safeguards to be observed while considering the premature release of life convicts. One such safeguard is “whether the offence was an individual act of crime without affecting the society at large”. The crimes perpetrated by these 11 convicts were not only heinous, they were perpetrated in the midst of what has been called a pogrom against Muslims in Gujarat. Their crimes were not individual crimes, and they definitely affected society at large. This being so, the Gujarat government would have been right to decline to release these convicts. In that eventuality, the convicts would still have had the option to avail legal remedy as per the law.
One aspect that has remained obscure from the public discourse is whether the release of these gang-rapists and murderers had the approval of the Narendra Modi government. Section 435 of the Criminal Procedure Code lays down that in cases that were investigated by the Delhi Special Police Establishment, that is, the CBI, the power to remit or commute a sentence cannot be exercised by the state government except after consultation with the central government. Now, if there is no compliance with Section 435, then the act of releasing these convicts is illegal. If it was done with the Centre’s approval, then it neither falls within the boundaries of the general amnesty scheme introduced by the Government of India for release of prisoners as part of the Azadi ka Amrit Mahotsav celebrations, which said persons convicted of rape must not be released, nor is it in accordance with Prime Minister Modi’s own call from the ramparts of Red Fort to “respect women”. The Modi government has remained silent so far on whether its approval was sought or not, whether it had approved the release of Bilkis Bano’s rapists or not.
It was certainly not a happy sight to see 11 convicts who had committed horrendous crimes walk out of prison on the historic 76th Independence Day. In releasing these criminals, the Gujarat government may have followed the letter of the law but certainly not its spirit.
(The writer is a lawyer practicing in the Punjab & Haryana High Court, Chandigarh)