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Bilkis Bano: Justice in Jeopardy

India, that is Bharat, has firmly upheld its adherence to 'Secularism' till the date and along the way, India, that is Bharat, has also witnessed sectarian strife and bloodshed till the date. The country is very well familiar with the infamous term "riots". Post-independence, communal violence emerged in several parts of the nation, but the one thing that was common among them all; crimes, crimes that were committed in the name of Hindu-Muslim conflict. Indeed the 'Divide and Rule' policy of the Britishers had left its traceable imprints on the secular land of the nation.

Thus, riots have been an intermittent phenomenon in India, resulting in the mass murder of human beings as and when they occurred. The western- Indian state of Gujarat observed one such atrocious communal riot in 2002.

The Gujarat riots of 2002 were a series of tragic incidents which lasted for over three days and reportedly took the lives of around one thousand people. The said riots were the after-effects of the 'Godhra episode', wherein, on 27th February 2002, a train 'Sabarmati Express', returning from Ayodhya had caught fire and almost 59 Hindu pilgrims including Karsevaks died near Godhra railway station. Although the outbreak was said to be an accident, a mishap, that occurred on a circumstantial basis, blaming Muslims for setting alight such fire, the anti-Muslim riots thus began.

The Hindu mobs went on a rampage attacking Muslim neighborhoods. The State of Gujarat was then led by the BJP government under the statesmanship of Mr.Narendra Modi, the then Chief Minister of Gujarat. Criticism flooded against the government for failing to prevent such carnage. Nonetheless, a now well-developed State observed numerous brutal killings and horrific rape cases. Among many devastating chapters of such riots is the story of one, Bilkis Bano.

Bilkis Bano, a 19-year-old Muslim woman, was five months pregnant with her second child. She was visiting her parents in a village called Randhikpur near Godhra along with her three-year-old daughter when the riots took place. Petrified by the omnipresent violence, Bilkis travelled from village to village, seeking shelter in Mosques, to escape the violence that plagued Gujarat.

She was accompanied by a group of 17 Muslims which included her mother, her daughter, her pregnant cousin, younger siblings, nieces and nephews, and two adult men. However, such situational avoidance came to an end on the morning of 3rd March 2002, when a mob of a few Hindu men stopped Bilkis and her relatives from mobilizing.

The group of Hindu men allegedly attacked the Muslims and mercilessly gang-raped Bilkis until she fell unconscious. Bano's daughter was among 14 other people who were killed that day in Limkheda Taluka of Dahod district. Bilkis was the only survivor of the crime from the rest of her family members.

The matter was brought to the notice of courts in Gujarat. Deliberate attempts and impediments were made to save the convicts. Bilkis was threatened with death, the reports presented before the court stated that she was not raped and that the convicts were innocent as there was no material evidence against them.

Eventually, the heinous attribute of such an offense caught the attention of the apex court when Bilkis pleaded before the SC that Gujarat's environment was not favourable to conduct a fair trial. As a result, in 2004, the Supreme Court handed over the case to federal investigators.

The top court believed that the courts in Gujarat could not provide justice to Bilkis and therefore transferred her case to Mumbai. It was only then that the first arrest pertaining to the matter was made. There were calls for declaring the death penalty to all accused concerned in the case, however, such a death sentence was later commuted. After a long due trial, on 21st January 2008, justice was held at the helm and a special CBI court in Mumbai sentenced the 11 accused men to life term imprisonment, imposing charges of murder and rape.

Thereupon, the Bombay High Court upheld this decision in 2017. One might think that this valiant battle, fought by an illiterate Muslim woman, to seek justice observed a significant win; but it is not so. Fifteen years later, the appalling story of Bilkis is being narrated to the world through headlines.

Radheshyam Shah, one of the 11 convicts, made an application asking for premature release, to which the Gujarat High Court opined that it was at the discretion of the State Government of Maharashtra to have a final say. The authorities in Maharashtra contemplated the heinous nature of crime and therefore did not allow such remission.

Then followed Radheshyam's approach to the Supreme Court of India, petitioning for premature release. Justice Ajay Rastogi was of the view that not only the government of Gujarat was the 'appropriate government' to consider the said application but he also notified that such a remission is to be sought through the 1992 remission policy of Gujarat. A committee was then set up and the unanimous decision of the committee paved the way for the remission of the 11 convicts.

While India was celebrating its 75th year of independence by reminiscing its glory through the 'Ghar-Ghar tiranga' campaign and with a solemn motif of showing respect towards the women in our society, the rapists of Bilkis Bano were also set independent. The government of Gujarat, on 15th August 2022, released the 11 convicts on the grounds of their apparent "good behaviour" and "conduct" in jail.

The question pounds everyone's head, how can the law permit such release of prisoners? To elucidate it, the term remission means a reduction in the tenure of life imprisonment. Articles 72 and 161 of the Constitution of India vests power in the President and the Governor, respectively, to pardon, remit, suspend or commute a sentence.

Not only the Criminal Procedure Code, under Section 432, explicitly makes provision for granting remission but it also provides for the factors that are to be taken into consideration while doing so. However, with every right comes an obligatory duty. Section 433 of the Criminal Procedure Code states that no remission can be granted unless the prisoner has served at least 14 years of imprisonment.

Altogether, the law allows the guilty to walk out free and so do the compiled public welfare policies which recognize remission as valid. Gujarat's remission policy of 1992 permitted the prisoners to file an application for remission on the basis that life imprisonment is a notional theory. It failed to specify as to who will be eligible for remission.

The Centre notably issued revised guidelines in 2014 retaliating that remittance cannot be granted to prisoners who are convicted for the charges of rape, gang rape, and murder. The 2014 policy related to amnesty is currently effective in Gujarat. However, the release of the prisoners was directed through a fallacious 1992 policy that was prevalent in the State of Gujarat at the time of conviction i.e., in 2008 per se.

Following the release of the 11 convicts, CPI(M) leader Subhashini Ali, journalist Revati Laul, academic Roop Rekha Verma and TMC MP Mahua Moitra knocked on the doors of the apex court against such remission through PILs (Public Interest Litigation). Proceedings began, and the then Chief Justice of India N. V. Ramana clarified that the SC did not allow such remission, it merely suggested the State Government of Gujarat to consider the application.

Mr. Tushar Mehta (the Solicitor General of India), on behalf of the government, contended that the three women who filed the PIL were strangers to the case, thus the petition is not maintainable. The State officials submitted an affidavit revealing the solicitation of approval whereby the Ministry of Home Affairs, on 28th July 2022, had given its assent to the application of remission. Council representing the petitioners condemned the remittance to be against the morale and humane aspect.

The trepidation in which Bilkis finds herself today is completely justified. Late in November, aggrieved Bilkis herself approached the Supreme Court challenging illegitimate remission and the earlier judgment of Justice Ajay Rastogi, allowing the Gujarat government to consider the application.

The detrimental facet in Bilkis Bano's case is its leading loophole. The statutory provisions emphasize clearly that, as far as cases wherefore a CBI inquiry is made, the guilty prisoner is excluded from the ambit of remission. Moreover, the Home Ministry did not take into account the essence of crime as it has sabotaged its Central statute.

The Gujarat High court's verdict, which conferred power to the State government of Maharashtra to consider the application, was not challenged by Radheshyam Shah through a Special Leave Petition (SLP) but rather through a writ petition. It is to be noted that a High Court's order can only be challenged through SLP.

Therefore, the remission is patently illegal. Advocate Shobha Gupta, lawyer of Bilkis, avowed that the language of Section 432(7)(b) of CrPC clearly states that the appropriate government to decide remission is the government of the State where the trial is concluded.

On 17th December 2022, the apex court dismissed Bilkis Bano's review petition. The adage justice delayed is justice denied echoes through the canyon of a sovereign. Bilkis Bano's right to live with dignity enshrined in the Constitution of India is enormously violated to a great extent. Willingness to fight for justice shall test her endurance again. It is high time that we question ourselves, is justice really in jeopardy?

Also Read:

  1. Right to Justice: Bilkis Bano Case

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