REMISSION: Remission is a special power enjoyed by the President to release prisoners at the request of their families for mercy and on the good conduct of the prisoners while in jail. As in the case of the Rajiv Gandhi assassination when both Priyanka and Rahul agreed to pardon the assassins of their father on the request of Nalini Sriharan who was a party to the crime of blowing up the late prime minister of India with explosives tied to their body
By The Wire Staff
It is now the turn of senior bureaucrats to condemn the remission given to the 11 accused in the Bilkis Bano case. The remission given on a national occasion like Independence Day to release criminals is like insulting the Constitution.
In an open letter to the Supreme Court, 134 former members of the All India Services, under the banner of the Constitutional Conduct Group, have expressed their deep distress at the Gujarat government’s decision to release prematurely the 11 men convicted of gang-raping Bilkis Bano and killing 14 people during the 2002 Gujarat riots.
The signatories of the open letter have called upon the top court to rectify the “horrendously wrong decision” by the state government to release the imprisoned convicts under the state’s remission policy on August 15 this year, India’s 75th Independence Day.
In 2008, these men had been sentenced to life for gang-raping 21-year-old Bilkis Bano, who was also five months pregnant, and murdering 14 people, including Bano’s three-year-old daughter, during the 2002 Gujarat communal riots.
Following the Gujarat government’s decision to release the 11 convicts under its remission policy, a PIL was filed and is currently being heard by the top court. Notice was issued to the Gujarat government as well as the Union government in the case.
The letter begins by recounting the incidents that took place on February 28, 2002, when a 19-year-old and five-months pregnant Bano, along with members of her family and other Muslim locals, was attempting to flee from a mob destroying Muslim homes as part of the communal riots underway in the state.
“Bilkis, her mother and three other women were raped and her three-year old daughter’s head was smashed. Later eight persons were found dead and six were missing. Bilkis, naked and unconscious, an old man, and a three-year-old survived; her own daughter did not. It is a remarkable story of courage that this battered and bruised young woman, hiding from her tormentors, managed to seek justice from the courts,” the letter reads. The letter then retraces the journey of the case, transferred from the Gujarat police to the Central Bureau of Investigation (CBI) and then from Gujarat to a special CBI court in Mumbai to ensure a fair trial, in light of the death threats Bano had been receiving at the time.
“The case was a rare one because not only were the rapists and murderers punished, but so, too, were the policemen and doctors who tried to tamper with and erase the evidence to protect the accused and cover up the crime,” the former servicemen and women wrote in the letter.
The letter then moves to this year, when one of the convicts, Radheshyam Shah, approached the Supreme Court with a plea seeking his premature release. It also notes that the Gujarat high court had, in the past, been moved with the same plea, but had dismissed it, observing (with judicial precedent) that the appropriate government to deal with the plea would be that of the state in which the conviction was ordered, i.e. Maharashtra, and not Gujarat.
However, on May 13, as the letter highlights, the top court held that since the crime was committed in Gujarat, the Gujarat government is the ‘appropriate government’ to hear the convicts’ remission pleas.
The CCG signatories question this decision in the letter, highlighting that collusion of government officials in the case in the past was apparent. Further, the letter marks the precedent set in Union of India versus V. Sriharan alias Murugan that the ‘appropriate government’ would be the one of the state in which the conviction took place, calling it “unfortunate” that this precedent was not followed in the present case.
The letter then raises objections to the top court’s order that the case should be heard by the state of Gujarat within two months, questioning why the decision was afforded this urgency, Further, it highlights the Supreme Court’s directions that the case should be heard on the basis of Gujarat’s 1992 remission policy rather than the present one.
“While it may be the practice, as held by the Supreme Court in its judgment of 22 March 2010 in State of Haryana & Ors vs Jagdish, to examine a remission proposal on the basis of the policy existing at the time of conviction, surely the Supreme Court could not be unaware of the major changes in the punishment for rape and murder and the policy for remission which were made much more severe in 2014 after the Nirbhaya case? Can persons who committed rape and murder in 2002 be less liable than persons who rape and murder at the present time?” The letter reads. With regards to the Gujarat government’s decision to release Shah and the ten other convicts, the signatories of the letter raised a number of “errors”:
- According to Section 435 of the Code of Criminal Procedure (CrPC), where a case has been investigated by the CBI, clearance of the Union government has to be taken before giving remission in sentence. We are unaware whether such permission was taken, but it does not seem that it was;
- According to Section 432(2) of the CrPC, the opinion of the presiding judge of the court that passed the order of conviction has to be taken before granting such remission. The Union government, while writing to the state governments in February, 2013, quoted the Supreme Court order which inter alia stated, ‘Before actually exercising the power of remission under Section 432 of the CrPC, the appropriate government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming court. Remission can, therefore, be given only on a case-by-case basis and not in a wholesale manner’.It appears that the view of the presiding judge of the CBI court was not taken;
- In a case like this where the victim, her family and witnesses braved death threats and threats of physical harm in fighting the case and shifted residence repeatedly for safety, it was obligatory for the Gujarat government to ascertain how such a release would impact their lives. This was not done even though the victim and her supporters have often stated that they were threatened with violence by the convicts (who were liberally granted parole while in jail) as well as by the families and friends of the convicts. Bilkis has reportedly changed homes some 20 times over these years, because of threats to her life. With the celebrated release of the convicts from jail, the trauma, suffering and vulnerability to harm for Bilkis will be significantly heightened;
- It is also shocking that five out of ten members of the Advisory Committee, which sanctioned the early release, belong to the Bharatiya Janata Party (BJP), while the remaining are ex-officio members. This raises the important question of the impartiality and independence of the decision, and vitiates both the process and its outcome.
“In view of these glaring deviations from established law, departure from government policy and propriety, and the chilling impact that this release will have, not just on Bilkis Bano and her family and supporters, but also on the safety of all women in India, especially those who belong to minority and vulnerable communities, we urge you to rescind the order of remission passed by the Gujarat government and send the 11 persons convicted of gang rape and murder back to jail to serve out their life sentence,” the letter concludes.
Courtesy: The Wire