A Written Constitution with an Unwritten impunity

Our former Prime minister, Jawaharlal Nehru, while moving Objective resolutions on 13th December, rightly articulated “Resolution was something more than a resolution. It was a declaration, a firm resolve, a pledge, an undertaking and for all of us a dedication”. The resolution mentioned “All People of India shall be guaranteed and secured social order, economic and political justice; equality of status, and opportunities and equality before law.” The question that stands out now is the presumption whether all people of India as meant by our constitutional makers, really means “all”, whether equality before law stands applicable to everyone or just a group of entitled majority. 

The heart-wrenching tale of Bilkis Bano is one such case. Bilkis Bano is a rape survivor, who was gang raped along with 14 other family members during the Gujarat riots. Eleven men were convicted and sentenced to life. The release of these eleven life convicts by a flawed remission policy is what led to the present predicament.

What happened?

It all started with the burning of Sabarmati express at Godhra on February 27, 2002, which killed 60 kar sevaks who were en route to Gujarat after returning from Ayodhya. Though the forensic reports of the incident failed to substantiate the evidence to prove it was done deliberately, the aftermath of the incident led to a huge anti-Muslim pogrom in Gujarat and a grotesque episode in the history of our country. The riot spread like a wildfire and spilled over to nearby villages that led to inhumane killings. 

One such tragedy was held on March 3, in a village called Pannivel, where an Anti- Muslim mob brutally assaulted a group of Muslim men and women who were fleeing in fear of persecution, raping, and killing them. Bilkis Bano who was pregnant with her second child at that time saw her three-year-old daughter slaughtered with her head bashed to a rock by the angry mob. The other members included her mother, nieces and nephews, younger siblings and two adult men. In the onslaught, her cousin who birthed a child just two days ago was raped and murdered and the mob showed no mercy for even the newborn and was killed brutally. This horrific massacre left Bilkis Bano raped, unconscious, yet alive and two other boys to survive this gut-wrenching ordeal. Out of 17 people in total, 14 were left dead. Only seven bodies were found, while the others were left in a lurch. 

The course of Justice

Bilkis Bano’s battle for justice was aghast and gruesome. The inquiry saw a lot of direct threats and intimidation to Bilkis Bano and her family. Evidence tampered, the dead were buried without post-mortems, witnesses were intimidated, and death threats were imminent. It was in 2004 that the Supreme Court handed over the case to CBI and transferred the case from Gujarat to Maharashtra for impartial investigation and fair trial. It led to the conviction of 11 men by the trial court, all of them sentenced to life. Despite of that, Bombay High Court confirmed their life terms only in 2017. 

What led to their remission?

The Gujarat government released all the 11 convicts on August 15, 2022, based on its old, outdated remission policy of 1992.

Life sentences generally means jail term for the whole life. But the remission policies of Central government and State government provide them with authority to remit the remaining prison term after 14 years based on its remission policies. The remission is carried out by appointing a committee which investigate the details of conviction, convicts’ history, the conduct of prisoner during jail term, health issues etc.,

 The new policy of remission, 2014 was not considered, as the old policy was in place when the conviction happened in 2008. This was held by Supreme Court in State of Haryana Vs Jagdish case 2010, in which it mentioned that the policy applicable while conviction must be considered for deciding premature release. 

In May 2022, the apex court had directed the Gujarat government to consider the application of one of the convicts, Radheshyam Bhagwandas Shah, for pre­mature release in terms of its remission policy of July 9, 1992. The 1992 policy was prevalent on the date of conviction. SC also held that under section 432 of Code of Criminal Procedure, the Gujarat was the “appropriate government” to decide the remission of convicts in the case. 

Why the remission is dubious?

The remission is considered erroneous and flawed owing to several factors. Firstly, under section 435 of Code of Criminal Procedure, in cases investigated by CBI, the state government has to mandatory consult the Central government prior remitting prisoners. In Bilkis Bano’s case no such consultation happened. 

Secondly, the committee which recommended the remission of prisoners, was alleged of involving some local MLAs of a majority political party as members, which diluted the locus standi of enquiry. Remission panel generally includes officials, parole and rehabilitation officials, prison officials and judges involved in trial or District judge. It is also notable that the district judge’s opinion, opposing the grant of remission is overshadowed and ignored by the ill-conceived panel members. Even though the opinion of judge is not mandatory and binding, disregarding constitutional view of a judge is fallacious and rendered the courts inert.

Thirdly, Courts directions with regard to remission of prisoners was left in lurch. Supreme court in Laxman Naskar Vs Union of India & Ors Case 2000, ruled that the remission should be fair, informed, reasonable and rational. It even laid down five prerequisites before remitting a person that includes, Whether the offence is an Individual act that doesn’t affect society, whether any chance of the crime being repeated in future, whether the convict lost the capacity to commit the crime, whether the prison term served the purpose, socio-economic conditions of prisoner’s family. 

Ramifications of the move

While the people of India were celebrating 75th year of independence with full fervour, our country kicked off with the release of 11 prisoners convicted with heinous crime. What message it sends to the countrymen? What idea it is imbibing in the minds of people? What kind of discourse it tries to prove? In a country where justice is delayed and denied, these sort of horrendous episodes, appear as a blot in the judicial system. 

The derisive thing about the day of release was the same day when our Prime Minister in his 75th Independence Day speech called for ‘Respect for Woman’ as important pillar of India’s growth. He flamboyantly quoted “Pride of Nari Shakti will play a vital role in fulfilling the dreams of India... It is important that in speech and conduct, we do nothing that lowers the dignity of women.” One can see the irony of what our governments did as antagonistic to the above-mentioned. 

It is seemingly paradoxical in our typical Indian society where women are respected publicly but shamed and abused privately. It is deeply disturbing to see our country’s values which once upheld women in an ennobled position into shambles as the days pass by. The recent judgement by the Delhi High Court’s Division bench, on the exception given to a husband in marital rape, where split verdict was given by judges added to the woo. It went on to an extent, in which one of the judges quoted as “Legitimate expectation of sex is an inexorable aspect of marriage”. He even added “Sex between a wife and husband, whether the petitioners seek to acknowledge it or not, is sacred”. While the other one mentioned “Right to withdraw consent at any given part in time forms the core of the women’s right to life and personal liberty”. It is quite intriguing that the very nature of Right to Privacy, which was upheld as a Fundamental right under Article 21- Right to life and personal liberty put forth by Justice K.S. Puttaswamy vs Union of India case 2017 is in dereliction by the same courts. 

What future holds?

The solution to address any concern is to first accept the very fact that there is a concern. What’s done can be undone, by the Supreme Court by hearing out and weighing out the victim’s concern and public opinion with respect to the case. Supreme court can turn the stones, that will reinforce the public credence and faith towards the judiciary who is the last refugee of an individual clamouring for justice. 

- Vikash

Reference

BBC, India Today, The Hindustan Times, The Hindu, Deccan Chronicle, India Kanoon, The Indian Express.