Early release of Bilkis Bano convicts | Day 11: Remission must focus on behaviour in jail, not heinousness of crime, Luthra arguesEarly Release of Bilkis Bano Gangrape Convicts
Senior Advocate Siddharth Luthra, in an hour-long hearing, concluded his arguments in support of the remission granted to convict Ramesh Chandana. Luthra focused on the philosophical aspects of remission and attempted to persuade the Bench that the failure to pay a fine for an offence cannot lead to the revocation of remission.
During the Gujarat riots in March 2002, Ms. Bano and her family were fleeing from their home in Radhikpur village to Chapparwad village. However, before reaching they were ambushed by a group of men who gangraped Ms. Bano and murdered 14 of her family members including her infant daughter.
Ms. Bano approached the Supreme Court and in December 2003 the Court order the Central Bureau of Investigation (CBI) to investigate her allegations. The case was transferred to a special CBI Court in Bombay and in 2008 the Court imposed life sentences on 11 of the accused.
In May 2022, the SC Ordered the Gujarat State government to consider a request for remission made by one of the 11 convicts, under the 1992 remission policy. In August 2022, the Gujarat government granted the early release of all 11 convicts under the 1992 policy and publicly stated that they were released on ‘good behaviour’. However, this claim has been widely contested. Many allegations have been made claiming that many of the convicts violated their parole, made death sentences against Ms. Bano and her family, and had pending criminal cases against them for crimes committed while they were out on parole.
Ms. Bano and a host of other petitioners challenged the early release of the 11 convicts. They claimed that the Gujarat government should never have released them under the 1992 policy. The gravity of the offence should preclude any early release and further, none of the convicts had served the minimum sentence required to be considered under the 1992 policy.
Life imprisonment without remission is “incompatible with human dignity”
Luthra stated that the “whole purpose of incarceration” is to “improve” the convict. If a prisoner is incarcerated without the possibility of remission, “there is a risk that he can never atone for his offence.” Arguing against life imprisonment without remission, he stated that the convicts’ punishment “becomes greater” the “longer he lives,” which is “incompatible with human dignity.” Justice B.V. Nagarthna pointed out that Luthra was discussing a larger “philosophical question” about remission which is a “well-accepted” principle. She emphasised that Bilkis Bano and other petitioners were “not challenging the concept” but only the remission granted to convicts.
Luthra’s reasoning for taking this philosophical tangent was that petitioners were relying on the “heinousness” of crime, and the “nature of evidence”. These are not the considerations while granting remission, he argued. Jail authorities only consider the behaviour of the convict inside the prison while examining an application of remission. He contended that a rehabilitation scenario cannot be prohibited and that the petitioners’ arguments dwell upon deterrence and retribution. Simply put, Luthra wished to convey that the petitioners aim to challenge the “nature of [remission] policy” which is to reform and rehabilitate.
Non-payment of fines has “no impact” on remission
Luthra argued that as per Abdul Gani v State Of Madhya Pradesh (1952) “imprisonment in default of payment of fine” is distinct from the “sentence of imprisonment awarded to a person for committing an offence”. He tried to persuade the Bench that this distinction means that “the fact that it [fine] was not paid or was paid will have no impact on the merit or legality of the order”.
In the previous hearing, Luthra submitted that the convicts paid their fine almost a year after their release from prison to prevent “controversy”. Senior Advocate Vrinda Grover had argued that failure to pay the fine would render the remission illegal.
Justice Ujjal Bhuyan asked if the non-payment of fines has any bearing on the “conduct” of the convicts. Remission policies rely on “good behaviour” and “conduct” of the convicts while considering their premature release. Luthra justified that the convicts were unable to pay their fines due to their 15-year-long custody as they were cut off from their resources.
Justice Nagarathna reminded that the convicts “had the privilege of coming out [on parole] for days together.” Luthra attempted to deflect that by saying that the convicts were released during the Covid-19 pandemic. Justice Nagarathna repeated that “all convicts are not the same” insinuating that these convicts enjoyed the “privilege as opposed to others”. In previous hearings, Justice Nagarathna had asked Additional Solicitor General S.V. Raju whether the opportunity of remission is granted to everyone, or just a few.
Arguments are expected to continue on 20 September 2023 at 3:30 P.M.