Bilkis Bano with her husband Yakub Rasool at the press conference in New Delhi. (Express File Photo by Prem Nath Pandey)
Accusations of bias or preferential treatment are ridiculous, convicts in the Bilkis Bano case utilised the remission process afforded to them after the minimum of 14 years. But this is less about jurisprudence and technicalities of law and more about justice
Written by Shazia Ilmi
Updated: September 10, 2022 7:06:44 am
No condemnation of the unspeakable agony of Bilkis Bano and the horrors that she has endured will suffice. There will be some who flaunt their remorse and use Bilkis Bano’s pain to display their righteousness. Some self-proclaimed intellectuals gloss over similar acts of barbarity on the watch of dispensations they are affiliated with. As this case of remission took place in Gujarat, it’s become yet another rallying point to hit out at the Modi government and use Bilkis Bano’s tragedy for political capital.
For someone like me, who withstood the police lathis and tear gas shells at India Gate during the protests following the December 2012 gangrape and felt the pulse of a collective conscience, there are, undoubtedly, issues about the remission that need to be addressed. To do that, there are three strands we need to separate.
The first is the outrage about the relative brevity of the sentence. The second is the legality of the remission. The third is the felicitation of the remitted. The remission comes under the ambit of the BJP government in Gujarat but it’s also important to distinguish between the state government in Gujarat and the executive office of the Prime Minister and the distinct separateness of their jurisdictions.
Let us look at the brevity of the jail time served. I am appalled that the guilty in such a heinous crime can get away with a mere 15 years. On this, there can be no two opinions.
Yet, justice is not eye for an eye. Remission is ordained by law but there exists, historically, immense inconsistency in judgments regarding the death sentence and life imprisonment. In 2003, the Justice Malimath Committee submitted a report advocating a permanent statutory committee to prescribe sentencing guidelines to reduce ambiguity in the award of such sentences. According to Gujarat High Court judgments, a Gujarat government circular issued on July 9, 1992, pertains to the early release of life convicts who had served over 14 years of jail time on or after December 18, 1978.
In April 2022, a Supreme Court bench, led by Justice U U Lalit, revoked the death sentence of Mohammad Firoz, a man convicted for the rape and murder of a four-year-old girl. The review petition submitted by the victim’s mother was also rejected. The court ruled, “While balancing retributive justice with restorative justice, we believe it appropriate to impose upon the defendant-appellant the penalty of twenty years imprisonment instead of life imprisonment for the offence under section 376A.” Imagine the emotional devastation of the toddler’s mother and family who will watch the rapist and killer of their child being shown mercy, even for a crime termed “rarest of the rare”. In the ghastly tandoor case, convict Sushil Sharma, the killer of Naina Sahni, was released vide remission.
The 1992 policy under which the Bilkis Bano convicts were released is at odds with the Centre’s guidelines, which bars relaxation in cases investigated by the CBI and for heinous crimes such as murder and rape. Having been an active participant in massive anti-rape protests in Delhi in 2012, my subjective view is that this remission is inconsistent with the spirit of the Criminal Law (Amendment) Act, 2013, which incorporated several key amendments proposed by the J S Verma Committee towards gender justice.
The second issue is of remission. Once found guilty, one has to serve the minimum time for the offence as laid out in law. However, remission at the end of this minimum term is not a right. In India, almost nothing comes under the category of “settled law” unlike, say, the United Kingdom. The result: Remissions are a constant tug of war between the executive and judiciary.
The convicts in the Bilkis Bano case utilised the remission process afforded to them after the minimum of 14 years. The main issue of contention was who would decide on their remission: The Centre (which prosecuted the case under the CBI), the state in which they were tried (Maharashtra) or the state in which they serve their sentence (Gujarat). The Supreme Court held that Gujarat had the final say in the matter and a remissions board was duly constituted. This board, satisfied with what they saw, granted the remission. The argument arises here that the remissions should have been considered under the 2014 legislation which excludes rape from the list of remittable crimes. However, as per legal principles, all criminals can benefit from legislation enacted after conviction, they cannot be retrospectively punished by legislation enacted after punishment. Consequently, their remission had to be considered under the 1992 legislation that was quite liberal in extending the ambit of remissions.
At any rate, given the judiciary has the final say in the discretionary exercise of the executive power of remission, even this remission is now being reviewed by the Supreme Court. That is to say, due process was and is being followed.
Similarly, the accusations of bias or preferential treatment are ridiculous. The government carried out no campaigns for their release unlike, say, the Tamil Nadu government in 2018, which passed Cabinet resolutions for the release of Perarivalan and others convicted in the killing of former prime minister Rajiv Gandhi.
This brings us to the third point: The felicitation of the remitted convicts by members of the VHP. To attribute this to the BJP is particularly strange given the intense acrimony between the Gujarat BJP and Prime Minister Narendra Modi on the one hand and the VHP on the other. The VHP is, on record, carrying out a campaign of vilification and defamation against PM Modi, accusing him of “destroying Hindu street power” — perhaps not realising that they were paying tribute to his staunchly non-partisan conduct in matters of law and order. That this felicitation was depraved is undeniable but the question is what exactly did this have to do with the BJP, given the history of acrimony between the two organisations?
The facts are clear: Privileges afforded to the convicts were exercised following due process. At the same time, this is less about jurisprudence and technicalities of law and more about justice. My personal sense of justice feels betrayed. I am sure that the Supreme Court will do right by Bilkis Bano. The ambiguity of law notwithstanding, the collective conscience of the nation must prevail. Even if our Constitution recognises the right to life and liberty and the collective opinion of a society is pronounced through law alone, where public outrage and declamation can play but a diminished role, I pray that the 11 convicts in the Bilkis Bano case — whose remission will stay or be revoked — will make amends and will be answerable not just to the Rule of law but also to the Rule of Divinity.
The writer is a women’s rights activist and national spokesperson, BJP
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