The Gujarat government appeared to have bypassed a guideline by the Union government about not remitting sentences of those convicted for rape, or those serving life sentence, while deciding upon freeing convicts in the Bilkis Bano case.
The Bharatiya Janata Party-led state government’s Independence Day decision comes at a time when there was a clamour for stricter punishment in sexual crimes.
Eleven people, convicted for gang-rape of Bilkis Bano and murder of seven of her family members, walked out of jail on Independence Day after the state government remitted their sentence—an action that was lambasted by the Opposition parties as well as women’s activists.
The incident, which attracted global attention, took place during the 2002 Gujarat riots when Prime Minister Narendra Modi was the state chief minister.
According to the guidelines issued by the Ministry of Home Affairs (MHA), under Amit Shah, to states and union territories for releasing prisoners as part of ‘Azadi Ka Amrit Mahotsav’, rapists, human traffickers and drug peddlers were categorically barred from being released.
The Gujarat government’s decision also came on a day Prime Minister Narendra Modi spoke about women power and the need to fight misogyny in his address to the nation on the occasion of Independence Day.
Questions have also been raised whether the Gujarat government consulted the Centre on remission as per Section 435 of the CrPC as the case was investigated by the CBI. In 2015, the Supreme Court had said that consultation in this Section means concurrence of the Centre.
While the MHA had given clear instructions about those who could be freed as part of the programme under 75 years of Indian Independence, the Gujarat government might argue that they remitted the sentence based on a Supreme Court directive about the states having the authority to take a call on petitions for remission; in the Bilkis Bano case, one of the convicts had made such a plea.
The Gujarat government could have considered the remission plea by Radheshyam Shah, one of the convicts who approached the Supreme Court for premature release because he completed more than 14 years in prison.
The Supreme Court had then asked the Gujarat government to take a decision based on its July 1992 order.
Annie Raja, CPI National Executive Member and General Secretary of National Federation of Indian Women, said that this showed that the BJP governments do not see rapes and murders as some gruesome incidents but some award-winning events. "This remission, which even ignores the guidelines, will act as encouragement for future rapists and murderers," she told DH.
"The power of remission is an executive function. There was no judgement in the case which said the convicts could not be granted remission. So, as long as, there is no discrimination, the government has power to grant remission. However, the question is whether the state government applied it uniformly," senior lawyer Sanjay Hegde told DH.
"The case of people convicted in Godhra violence is pending before the Supreme Court, still nothing prevents the state government from exercising its power of remission in their case too. The state government, on the contrary, sought enhancement of their sentence to death penalty from life term. If the intention is to turn the page on violence, there should be some semblance of even-handedness," he added.
Noted criminal lawyer Sidharth Luthra said the Gujarat government's decision is apparently in terms of the policy of the remission prevalent at the time of conviction.
"Even though, a different view was taken in subsequent policy of 2014, if the state government's view is in conformity with the prevalent policy as directed by the Supreme Court, it is a valid exercise of power," he said.
The MHA, in April, had written to states about giving special remission to certain categories of prisoners and release them on this Independence Day (August 15), the next one, as well as the upcoming Republic Day (January 26), as part of the 75 years of Independence celebrations. But it had also identified that rape convicts and those in life imprisonment, among others, should not be released.
The Gujarat government, however, chose to ignore the guidelines by the MHA while deciding to free the convicts.
According to the MHA guidelines shared with states and union territories, convicts who were on death row, or serving a life sentence, or those convicted in terrorism cases, or those in jail for murder or rape were not allowed remission.
Others in the list who were not to be freed included those convicted in fake currency cases, human trafficking, child sexual abuse, money laundering, drug trafficking and corruption.