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Aashita P. Kumbhre
I.L.S. Law College Pune
“Every saint has a past, and every sinner has a future,” ~Justice Krishna Iyer
Justice Krishna Iyer observed this in the case of Mohd. Giasuddin v. The State of Andhra Pradesh (1977)1 . The culture that gives rise to anti-social behavior must be combated through reculturisation rather than absolute cruelty.
Introduction
Bilkis Yakub Rasool vs. Union Of India (2023)2 , commonly referred to as the "Bilkis Bano case." This case is linked to the events that unfolded during the Godhra riots of 2002. The Godhra riots occurred subsequent to the tragic Sabarmati massacre, in which approximately 60 Hindu passengers, en route to a pilgrimage, lost their lives when the Sabarmati train was set ablaze while passing through the Godhra district. This tragic incident triggered a wave of violence, with Hindu mobs attributing blame to the Muslim community. Consequently, they launched attacks against Muslims both within the affected area and its surrounding neighborhoods.Bilkis Bano belonged to muslim community, she was gang raped during the attack, she was 5 months pregnant when she was raped. The attackers not only raped her but also raped other female members and kill her whole family. This happened on 3rd March, 2002, in the district of Dahod. 11 of them were convicted, and sentenced for life imprisonment and fine, by the division bench. On 15 August 2022 Gujarat government grant them remission on the basis of good behavior.
Word Remission comes from the latin word Remissionem which means relaxation or sending back. In India there are some provisions which provide remission of convicts (reformative approach) and reduce or cancel their remaining period of sentence, if convicts fulfilled the criteria of granting remission.
In this article we will deal with the questions like What is remission? Is it constitutionally valid? And what happened in Bilkis Bano case.
Case Analysis
In March 2002, the distressing assault on Bilkis Bano unfolded, leading to the initial filing of an FIR on March 4th at Limkheda Police station. However, the first report lacked crucial details provided by Bilkis, and delays in her medical examination had a notable impact on the subsequent medical report. Subsequently, in March 2003, a summary report by the Limkheda Judicial magistrate effectively closed the case, prompting Bilkis to seek assistance from the National Human Rights Commission (NHRC) in April.
Taking the matter to the Supreme Court in April 2003, Bilkis sought the quashing of the magistrate's summary report, initiating a CBI investigation against Gujarat police officers. The Supreme Court intervened on October 25, 2003, putting a halt to the state CID investigation and eventually transferring the case to the CBI on December 18, 2003.
The CBI made arrests in January 2004, apprehending 12 individuals. By February 11, 2004, an interim report was filed, shedding light on the complicity of Gujarat police. A comprehensive charge sheet was submitted on April 9, 2004, encompassing 20 individuals, including six police officers and two government doctors. The CBI's final report in May 2004 underscored gross violations and the complicity of Gujarat law enforcement.
In July 2004, Bilkis sought to transfer the case outside Gujarat, leading to its relocation to a special CBI court in Mumbai in August 2004. Charges were officially framed on January 13, 2005, with Bilkis identifying 12 accused in February 2005. The trial commenced in Ahmedabad. On January 21, 2008, a special court delivered convictions for 11 men, sentencing them to life imprisonment for the rape of Bilkis and the murder of seven family members. Nevertheless, seven individuals, including law enforcement and medical professionals, were acquitted. In May 2017, the High Court convicted five policemen and two doctors for negligence of duty and evidence tampering.
Appeals were dismissed by the Supreme Court on July 10, 2017. In April 2019, the Supreme Court directed the Gujarat government to provide compensation, employment, and accommodation to Bilkis. However, expressing dissatisfaction, Bilkis approached the Supreme Court again in October 2020, citing non-compliance with the court's order, prompting the court to advise her to address her grievances with the relevant authorities.
Remission awarded in Bilkis Bano case
On August 15, 2022, all convicted individuals received remission, having served 14 years of their sentences, and were subsequently released from prison. This release on Independence Day stirred widespread global public outrage, leading to a mass uprising against the government. The remission, granted based on good behavior, adhered to the 1992 policy3 for the premature release of prisoners.
The release of the 11 convicts under the state's 1992 premature release policy faced legal challenges from petitioners, including Ms. Bilkis Bano. An affidavit from the State of Gujarat highlighted conflicting positions, as the Superintendent of Police, CBI, Special Crime Branch, Mumbai, and the Special Judge (CBI) of Greater Bombay opposed the premature release, while the Home Ministry recommended it.
Origin of Remission
The origins of the Remission system can be traced back to The Prisons Act, 1894. Encompassing a set of rules, this system, derived from the 1894 Act, assigns marks to prisoners, resulting in sentence reduction. Essential to the criminal justice framework, it aligns with rehabilitation and punishment principles in liberal democracies such as India. In the case of Kehar Singh vs. Union of India (1989)5 , the courts affirmed the right of prisoners to be considered for remission, preventing a lifetime of incarceration. State of Haryana vs. Mahender Singh (2007)6 stressed executive scrutiny for remission, acknowledging it as a legal entitlement under constitutional safeguards (Articles 20 and 21)
Grounds for Granting Remission
The Supreme Court underscores the imperative for states to exercise remission powers judiciously, adhering to due process. While remission policies differ among states, the Board consistently considers factors such as the gravity of the crime, the co-accused's status, and the convict's conduct in jail. In the case of 'Laxman Naskar v. Union of India' (2000)8 , the SC delineated five criteria for remission: evaluating if the offense is an individual act with no societal impact, assessing the likelihood of future crimes, gauging the loss of the convict's criminal potential, determining if continued imprisonment serves a purpose, and considering the socio-economic conditions of the convict's family. Furthermore, remission is contingent on the convict's positive behavior both inside and outside prison, efforts at reformation, the duration of the sentence served, and the convict's health.
Clemency Powers in India and Constitutional validity of remission.
Articles 72 and 1619 of the Indian Constitution grant exclusive remission powers to the President and Governor. The Code of Criminal Procedure, 1973, outlined in Sections 432 and 433, delineates the remission process for both central and state governments. This authority extends to cases under the central government's jurisdiction, encompassing court-martial decisions. The Governor, however, lacks the prerogative to alter death penalties or their commutation to life sentences.
Significant provisions in Sections 432, 433, 434, and 43510 of the Criminal Procedure Code empower elected governments to grant remissions. Section 433A11 imposes restrictions, mandating a minimum of fourteen years of imprisonment for life sentences. Section 22712 of the IPC stipulates penalties for violating remission conditions.
In the case State of Haryana vs. Mahender Singh and Others [2008] 3 MLJ (CRL) 18813, the Supreme Court emphasized that the right to be considered for sentence remission is a legal entitlement derived from constitutional safeguards (Articles 20 and 21), the Prisoners Act, 1894, and executive instructions. While not inherently constitutional, convicts possess the right to be evaluated for remission in accordance with state policy decisions, as long as they adhere to rules and avoid discrimination. However, such decisions can only be applied prospectively, lacking retrospective effects.
Misuse of remission in Bilkis Bano Case
1. Conversion of death penalty to life imprisonment.
2. Life convicts' failure to fulfill fine payments.
3. Intentional non-compliance with the Bombay High Court's compensation directive.
4. Absence of remorse exhibited by the convicts.
5. Refusal to furnish pertinent files regarding the convicts' release.
6. Multiple FIRs and complaints, encompassing charges like sexual harassment and threats, filed against convicts during parole.
7. Breach of parole regulations, including delayed surrender and involvement in crimes outside the prison.
8. Dubious display of good behavior.
9. Extended parole periods, with some convicts surpassing 1000 days (3 years).
10. Recurrent parole grants despite rule breaches.
11. Approval by Amit Shah, disregarding objections from CBI, the primary investigative agency.
12. Pointed out in The Indian Express report, these parole practices raise concerns.
Recent development in Bilkis Bano Case
On 8 January 2024 Supreme Court gave verdict and said “The law will prevail”. And send 11 convicts to jail to serve their sentences. And said Gujarat Government was biased while granting the remission to the convicts of Bilkis Bano Case.
Conclusion
In conclusion, remission holds a crucial role in India's legal system for justice and rectifying errors. Legal precedents stress its judicious application, considering factors like offense severity and convict behavior. The landmark Bilkis Bano case underscores remission's significance, with the Supreme Court prioritizing justice over leniency. Striking a delicate balance is vital, ensuring remission aids rehabilitation without compromising victims' rights or diminishing crime severity. Bilkis Bano's case underscores the importance of prudent remission for a fair and just legal system in India.
The Bilkis Bano Case verdict set a precedent, illustrating that neither individuals nor the government can misuse policies for personal benefits. It underscores the principle that the law reigns supreme, ensuring equality for everyone.
References -
1) MY LOFT
2) Criminology and Penology by N.V. Paranjape, 14th edition.
3) The Indian Penal Code, 1860.
4) The Code of Criminal Procedure, 1973.
5) The Indian Evidence Act, 1872.
6) NDTV, The Indian Express- Newspapers.
11) Wikipedia
12) Other news articles
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