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Mainstream, VOL LX No 35 New Delhi, August 20, 2022

PUCL condemns the remission of the sentence of the 11 convicts in the Bilkis Bano case

Friday 19 August 2022


322. Patpar Gang Opposite Anand Lok Apartments, Mayur Vihar, Delhi 110091 Founder: Jayaprakash Narayan Founding President: VM Tarkunde President: Ravi Kiran Jain General Secretary: V. Suresh
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18 August, 2022

PUCL condemns the remission of the sentence of the 11 convicts in the Bilkis case as arbitrary, unfair and dangerous for Indian democracy

Peoples Union for Civil Liberties condemns the release on remission of the 11 convicts in the Bilkis Bano case on August 15, 2022. 11 convicts charged with charges of gang rape of a pregnant woman and multiple murders walked out free.

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. 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.

On March 3 2002 Bilqis Bano from Randhikpur village of Dahod district Gujarat was 21 years old and 5 months pregnant when she was gang raped, 3 other women including her mother were also gangraped in front of the men of their family, Bilqis’s 3-year-old daughter Saleha was murdered, as the accused smashed her head with a stone and 7 members of her family were brutally murdered. All those who committed this gruesome act of brutality were people she knew from her neighbourhood

Due to public outrage in the matter the Supreme Court ordered the investigation to be carried out by CBI. In 2004 the accused in the case were arrested and the trial began in Ahmedabad, however due to apprehensions over the trial being conducted in Gujarat, fearing evidence tampering and threats to the witnesses, the trial was transferred to Maharashtra by the Supreme Court. On January 21, 2008, the Special CBI Court sentenced the 11 accused to life imprisonment on the charges of conspiring to rape a pregnant woman, murder, and unlawful assembly under the Indian Penal Code. The court acquitted seven other accused for lack of evidence and one of the accused had died during the trial. In January 2018 the Bombay High Court upheld the conviction of the accused. The case was carried to Supreme Court which upheld the convictions

Thereafter one of the accused Radheyshyam Shah approached the Gujarat High Court seeking remission of the sentence under sections 432 and 433 of the Code of Criminal Procedure (CPC). The Gujarat HC dismissed his plea saying that since the trial has been concluded in the State of Maharashtra, the application for pre-mature release must be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner. The petitioner approached the Supreme Court, the court in its order dated 13 May 2022 held that the crime in the instant case was admittedly committed in the State of Gujarat and ordinarily, the trial was to be concluded in the same State and in terms of Section 4327) CPC, the appropriate Government in the ordinary course would be the State of Gujarat but the instant case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State (State of Maharashtra) by an order dated 06 August, 2004 but after the conclusion of trial and the prisoner being convicted, stood transferred to the State where the crime was committedGujarat) which remains the appropriate Government for the purpose of Section 432(7) CPC. The policy with which the petitioner must be governed applicable in the State of Gujarat on the date of conviction, is Resolution No. JLK/3390 CM 16 Part 2 dated 9th July 1992

Based on the order of the Apex Court, the government of Gujarat formulated a committee to consider the release of the accused and found it fit to allow the pre-mature release of these accused

Recently the Ministry of Home affairs, Central Government issued a notice on "Special Remission Module to grant remission to prisoners as part of the celebration of Azadi Ka Amrit Mohotsav and directed the states to take necessary action to expedite the process, the notice says prisoners to be released on 15 August 2022, 26 January 2023 and 15 August 2023 after due consideration by the committees formulated at the state levels. However, the guideline clearly mentions that the policy will not be applicable for prisoners convicted of rape. Similarly, as per the resolution no JKL/822012/18593 dated 23 January 2014 of the Government of Gujarat Home Department, prisoners convicted for gang rape, group murder of two or more members would not considered for remission. However, the Resolution No. JLK/3390/CM/16/Part 2/dated 9th July 1992. according to which the 11 convicts were released has not categorised the convicts eligible for remission process. In any case this is a discretionary relief which has to be exercised on objective basis. In the present case where the Supreme Court had itself felt that situation in Gujarat was not ripe for handling the trial and the victim and her family were constantly under pressure and threat the discretion should not have been exercised to release the persons. It was also incumbent, in the context of the case, to ascertain the views and apprehensions of Bilkis and her family before any decision was taken

It should be noted that under section 435 of the CrPe if the case is investigated by the CBI, that the power of remission that is awarded to the state government in a case investigated by the CBI shall not be exercised by the government except after consultation of the central government

The arbitrary release of these Il convicts sends a rude shock across the nation, raising several questions as to how the State of Gujarat has arrived at this decision and how has the central government remained silent after affirming decisions on such matters. The decision to grant remission should be consultative, fair, informed, and reasonable. Here it is evident that the state has abused the discretionary power awarded to it.

This decision also mocks the efforts of all the human rights defenders in the country who have been walking the difficult path to seek justice for the most vulnerable in this country. Bilkis and Yakub did not give up their faith in the state for nearly 17 years and fought tooth and nail for justice. The family today is again pushed into the darkness of fear, their faith shaken, and their world shattered.

While PUCL is supportive of the remission of sentences, at the same time it cannot be done in a discriminatory manner, and especially in heinous crimes such as this one and that too without ascertaining and establishing full support and safety structure for victims.

As concerned citizens of the country we demand that this injustice be undone

1. The remission of these Il convicts be immediately revoked
2. Protection measures for Bilkis and her family be immediately ensured 3. The Central and State government be held accountable for such arbitrary abuse of power
4. The Government of Gujarat should place in the public domain the entire process, the proceedings of the committee leading to the governor finally giving assent to the remission of sentences

Dr. V. Suresh, Gen. Secretary, PUCL: Ravi Kiran Jain, President, PUCL Kavita Srivastava, National Secretary, PUCL: Arvind Narrain, President, PUCL Karnataka state unit, Lara Jesani, PUCL Maharashtra ,26.09.2021

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