Early Release of Bilkis Bano Convicts | Day 8: Remission was correctly granted to convicts, argues Gujarat governmentEarly Release of Bilkis Bano Gangrape Convicts
Today, Additional Solicitor General S.V. Raju, appearing for the Gujarat government and the Union of India, argued that the remission of Bilkis Bano’s convicts fulfilled the requirements of the 1992 Gujarat Remission Policy.
Last week, the Supreme Court heard arguments for three days related to the validity of the remission, and the maintainability of Public Interest Litigations (PILs) filed by ‘public spirited’ third parties.
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.
“A Writ of Mandamus Cannot be Reversed”
In May 2022, Raju argued, the Supreme Court issued a writ of mandamus directing the remission of the 11 convicts to be examined under the 1992 Gujarat Remission Policy. Raju emphatically stated that remission cannot be reversed in a judicial proceeding as a writ of mandamus is not something that can be easily undone.
In support of his contention, he referred to Jaya Thakur v Union of India (2023) where the Court held that extending the tenure of the incumbent director of the Enforcement Directorate through legislative means contradicted a mandamus that explicitly barred such extensions. Raju extended the argument to state that if a writ of mandamus cannot be “removed” by legislation, a judgement cannot reverse it either.
He contended that even if the Bench “disagrees” with the mandamus issued by the Supreme Court, it “cannot be “reversed.”
Remission is valid as per requirements of the 1992 Remission Policy
Raju argued that the 1992 Policy was without fault in granting remission to the convicts. The petitioners had earlier disputed the Policy for being “oblivious” towards evolving standards that advocated for more stringent criteria for remission of convicts involved in heinous crimes. He claimed that the petitioners’ reasoning was flawed. In support of his claim, he read out the requirements for remission under the 1992 Policy:
- Convicts must be sentenced to life imprisonment.
- They should have served a minimum of 14 years
- There should have been a favourable opinion from the Jail Advisory Board
Raju contended that the remission was granted after a straightforward application of the policy.
He then turned to Section 432(2) of the Criminal Procedure Code, which suggests that the opinion of the presiding judge of the convicting court should be taken into account before granting remission.
Raju admitted that, prior to the Supreme Court’s 2022 mandamus, the presiding judge of the court in Maharashtra had been consulted, and had issued an opinion opposing remission. This judge had, however, referred to a stricter policy that was prevalent in Maharashtra, and not the 1992 Gujarat Policy. Following the mandamus, the Gujarat government sought the opinion of a judge in Godhra.
Authorities against remission were unaware of the “ground reality”
The Godhra judge had expressed support for granting remission. Raju argued that this opinion counted because the trial was initially conducted in Godhra before the matter was transferred to Maharashtra. The Gujarat judge was more familiar with the “ground reality” than the one in Maharashtra.
Raju employed a similar rationale to contest the opinion of the Central Bureau of Investigation (CBI), which advised against remission. In his view, the CBI from “Navi Mumbai does not know the facts” in Gujarat. To Justice Ujjal Bhuyan’s question on how he himself was acquainted with “ground reality”, Raju responded by saying that the local superintendent police was fully aware of the actual facts of the case, and that its opinion was more “useful” than the CBI’s.
“Remission is an opportunity to start a new life”
Towards the end, Raju submitted that remission grants convicts a chance to start a new life. He suggested that someone who committed a heinous crime must not perpetually be denied this opportunity, especially if they’ve shown signs of reformation. Raju argued that good behaviour in prison indicates reform and stressed the need for the law to allow room for rehabilitation.
At this point, Justice B.V. Nagarathna jumped in with a simple question:did all prisoners have the chance for reform, or just a few? In reply, Raju mentioned that he couldn’t give a broad answer without specific data. That’s when she requested him to collect remission data from prisons across states because the “opportunity to reform and reintegrate must be given to every prisoner, not only to a few prisoners.”
Arguments in the case are expected to conclude on August 24, 2023.