The decision to grant remission of sentence to eleven men convicted in the Bilkis Bano case is now being challenged before the Supreme Court. LiveLaw reports that on Tuesday morning Advocate Aparna Bhat mentioned the matter before Chief Justice NV Ramana and sought an urgent listing for tomorrow.

CJI Ramana then reportedly enquired if the remission was granted by virtue of a Supreme Court order, to which senior advocate Kapil Sibal clarified, “The Supreme Court gave a discretion to the government to consider it. The bench was of Justice Ajay Rastogi. We are challenging the remission, not the order of the SC.”

Readers would recall that on August 15, eleven people convicted in the Bilkis Bano case were freed from Godhra sub jail after a state government panel approved their application for remission of sentence. The men had been convicted for gang raping Bano and murdering 14 people including Bano’s two and a half-year-old daughter Saleha.

The convicts who have been freed are: Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana. All these men were known to Bano and her family, some were her neighbours, some did business with her family.

Later in the day Trinamool Congress Member of Parliament Mahua Moitra also moved SC through advocate Shadan Farast. LiveLaw quoted an excerpt from her petition: "The release completely fails to bolster either social or human justice and does not constitute a valid exercise of the guided discretionary power of the State under Sections 432-435 Cr.P.C."

The petition argues that the Gujarat government was not the right authority to issue the order for remission of sentence as the case was investigated by the Central Bureau of Investigation (CBI). Moreover, the convicts were granted reliefs in a "wholesale" manner instead of individually deliberating on the merits of each case.

Brief background of the case

Bilkis Bano and her family had been attacked in Randhikpur village near Ahmedabad on March 3, 2002. In the particularly brutal attack, 14 members of her family were killed including Bano’s two-and-a-half-year-old daughter whose head was smashed on a rock! Bano, who was over five months pregnant, was gang raped.

After Bano approached the National Human Rights Commission (NHRC), the Supreme Court ordered a probe by the Central Bureau of Investigation (CBI). The accused were arrested in 2004 and the trial originally began in Ahmedabad. However, Bano expressed concerns about witness intimidation and evidence tampering, and the case was transferred to Mumbai in August 2004.

In January 2008, a special CBI court convicted 11 people in the case and sentenced them to life imprisonment. But seven people including policemen and doctors were acquitted. In 2017, the High Court upheld the conviction of the 11 people. The court also raised important questions about the role of five policemen and two doctors accused of not performing their duty and tampering with evidence, and set aside their acquittal.

Reason for release

One of the convicts Radheshyam Shah had approached the Gujarat High Court seeking remission of sentence, but the court dismissed his plea stating the appropriate government to consider his plea under sections 432 and 433 of the Code of Criminal Procedure, was Maharashtra and not Gujarat.

Readers would recall that though the trail had originally started in Ahmedabad, it had been moved to Mumbai after Bano expressed concerns about witness intimidation and evidence tampering.

After the Gujarat HC dismissed his remission application, Shah moved SC, and the apex court ruled in May that Gujarat was the appropriate state to examine his plea.

A news agency reported that a few months ago, a committee had been formed to look into the possibility of setting the men free. Panchmahals collector Sujal Mayatra was quoted as saying, “A committee formed a few months back took a unanimous decision in favour of remission of all the 11 convicts in the case. The recommendation was sent to the state government, and yesterday we received the orders for their release.”

Gujarat Additional Chief Secretary (Home) Raj Kumar had at that time explained, “Among the parameters considered are age, nature of the crime, behaviour in prison and so on…The convicts in this particular case were also considered eligible after considering all the factors since they had competed for 14 years of their life term.”

Reactions to the release

Initially stunned by the release, Bano herself broke her silence and in a statement released through her lawyer Advocate Shobha, said, “When I heard that the 11 convicted men, who devastated my family and my life, and took from me my three-year-old daughter, had walked free. I was bereft of words. I am still numb.” Her shock and trauma evident, Bano had asked, “Today, I can only say this — how can justice for any woman end like this?”

Legal luminaries and civil society have pointed out how under provisions of remission policies, rape and murder convicts were ineligible. Justice UD Salvi, the judge who had convicted the eleven men, told Bar and Bench, “A very bad precedent has been set. This is wrong, I would say. Now, convicts in other gang rape cases would seek similar reliefs.” He further explained, “There is no clarity if the State has made amendments to Section 376(2)g of the Indian Penal Code (IPC) and its definition. Has the State changed the definition of gravity of this offence of gangrape? If there is a modification in its definition, then the 1992 policy would be applicable. But if the definition and gravity of gangrape continues to be the same without amendment, then the policy of 2014 would be applicable, which would mean they shouldn't be given remission.”

A statement signed by over 6,000 citizens, including grassroot workers and women and human rights activists says, “The guidelines issued by the Centre to states on a prisoner release policy to coincide with Azadi ka Amrit Mahotsav, clearly states that among the categories of prisoners NOT to be granted special remission are ‘those convicted of rape’. And the remission of these sentences is not only immoral and unconscionable, it violates Gujarat’s existing remission policy.” Signatories include Syeda Hameed, Zafarul-Islam Khan, Roop Rekha Verma, Devaki Jain, Uma Chakravarti, Subhashini Ali, Kavita Krishnan, Maimoona Mollah, Hasina Khan, Rachana Mudraboyina, Shabnam Hashmi, as well as civil rights groups including Saheli Women’s Resource Centre, Gamana Mahila Samuha, Bebaak Collective, All India Progressive Women’s Association, Uttarakhand Mahila Manch, Forum Against Oppression of Women, Pragatisheel Mahila Manch, Parcham Collective, Jagrit Adivasi Dalit Sangathan, Amoomat Society, WomComMatters, Centre for Struggling Women and Sahiyar. They have urged the Supreme Court to revoke the remission of sentences for the eleven convicts.

The decision has also attracted international condemnation. United States Commission of International Religious Freedom (USCIRF) Commissioner Stephen Schneck called the early release of the convicts a “travesty of justice”, and said, “The failure to hold accountable perpetrators of the 2002 Gujarat Riots who committed physical & sexual violence is a travesty of justice. It's part of a pattern of impunity in India for those engaged in violence against religious minorities.”

Peoples Union for Civil Liberties (PUCL) said, “The release of the 11 convicts, even as many others accused of less serious offences remain in jail is an arbitrary exercise of power, having dangerous political overtones. It mocks the idea of a democracy based on rule of law when those accused of serious offences including rape and murder are arbitrarily released even as those who are falsely accused of crimes, continue to languish in jail.” 

It further said, “The release of the accused sends out the chilling message that the most heinous crimes including rape and murder, when committed against the minority community, are not crimes. This has fatal repercussions for the future of Indian democracy.”

Previously, Bebaak Collective, a women’s rights group had also issued a statement condemning “the application of the remission policy of the Gujarat government”. The Collective said, “Bilkis Bano, a fearless and brave survivor of the attempted genocide of Muslims in Gujarat in 2002 has had a tough 20-year journey trying to ensure justice is served against the men who wronged her,” and hailed her for carrying on “despite systemic adversities” and now giving into pressure. They asked, “Can sexual assault survivors trust the system anymore?”

Related:

Bilkis Bano case: NHRC to discuss release of convicts?

A very bad precedent has been set: Judge who convicted 11 men in Bilkis Bano case

Over 6,000 Citizens Urge SC to Revoke Remission of Convicts in Bilkis Bano Case

Bereft of words, still numb: Bilkis Bano

Bilkis Bano case: Eleven people convicted of gang rape and murder freed