By Amit Jaiswal
It is spirit and not the form of law that keeps the justice alive
—Earl Warren, chief justice of the United States (1953-69)
The 11 persons convicted of multiple murders and gangrape of a pregnant Bilkis Bano in 2002 during the Gujarat riots walked free from Godhra subjail on August 15, 2022. They brutally killed her three-year-old daughter by smashing her head on the ground and six other persons on March 3, 2002. The story thereafter is one of great struggle to bring the guilty to book.
The Supreme Court ordered a CBI investigation into the crime and the relentless struggle of Bano, with the help of human right groups and her lawyers, bore fruit on January 21, 2008, when the CBI Special Court at Mumbai convicted 11 persons for gangrape, murder and unlawful assembly and sentenced them to life imprisonment.
The case continued its journey through appeals by the convicted persons, which finally culminated in 2019 when the Supreme Court upheld the judgment of the CBI Court and also ordered a compensation of Rs 50 lakh to be paid to the victim. However, the semblance of peace that had finally descended on the victim was short lived as the Gujarat government released all 11 on the occasion of the 75th Independence Day in 2022.
The release came after one of the convicts approached the Supreme Court with a prayer that he had completed 15 years in prison and his case for pre-mature release be considered as per a 1992 policy of the Gujarat government. The Supreme Court in its order dated May 13, 2022, accepted the petition and issued a direction to the Gujarat government to consider the application of the petitioner and also ordered that in case of any unfavourable order, the convict may take remedies as available under the law.
While convicting and sentencing is a judicial function, executing that sentence and granting remissions is an executive function. The Prison Act, 1894, permits state governments to make rules for remissions and shortening of sentences. Most states have rules for granting remissions and this is exercised under Section 432 and 433 of the Code of Criminal Procedure. Different states have different policies for grant of remission and short sentences. This keeps changing from time to time.
However, there was no uniformity in the grant of remissions and there are instances where governments exercise this power in an arbitrary manner and release life convicts who had undergone only 12 years, 10 years and even lesser periods of sentence. This prompted the central government to introduce Section 433-A from December 18, 1978, which laid down that if a person is undergoing life imprisonment for an offence for which death is one of the punishments, then he would not be released unless he has served at least 14 years of imprisonment.
This resulted in a spate of petitions before the Supreme Court challenging the validity of the newly introduced Section. The apex court in Maru Ram vs UOI (1981) held the effect of the Section to be prospective in nature and it would not apply to persons convicted by courts before December 18, 1978. Thus, persons convicted before that date were saved from the rigours of Section 433-A of the CrPC.
The judgment in Maru Ram case acted as a guiding principle for the top court in dealing with the question of whether remission/short-sentencing policy should be applied to the convict. It held that the relevant policy for grant of remission and release would be the policy existing on the date of conviction of the accused (See State of Haryana vs Jagdish 2010). Any amendment in the existing remission policy or any new policy subsequent to the date of conviction which has a prejudicial effect on the period of incarceration of the convict has been held to have prospective affect. From this point of view, the decision of the Gujarat government to release the convicts as per the 1992 policy appears to be legally correct.
However, whatever is legal may not necessarily be ethical or right from the societal point of view. The question arises as to whether the state government had no option but to release the convicts only because their case was covered by the 1992 remission policy. It is settled law that no convict has a vested right to be considered for pre-mature release and that the power of short sentencing is discretionary.
The Supreme Court in State of Haryana vs Mahender Singh (2007), held that no convict has a fundamental right of remission or shortening of sentence and he has only a legal right to be considered for remission. In paragraph No. 38 of its judgment in State of Haryana vs Jagdish, the Court indicated certain safeguards while considering the pre-mature release of the life convicts. One such safeguard is “whether the offence was an individual act of crime without affecting the society at large”.
The heinousness of the crime perpetrated by these 11 convicts definitely falls within this caveat. The fundamentals of penology and victimology, particularly in relation to sexual offences, have undergone a sea change in the aftermath of the Nirbhaya gangrape case. This being so, the state government would have been well within its rights to decline to exercise the discretion to release the convicts by passing a speaking order spelling out the reasons for the same. In that eventuality, the convicts would have the option to avail legal remedy as per law.
One aspect which remained obscure from the media bytes given by the Gujarat Additional Chief Secretary, Home, is whether the approval of the centre was taken before releasing the convicts. Section 435 of the Criminal Procedure Code lays down that in cases where the investigation was carried out by the Delhi Special Police Establishment, i.e. the CBI, the power to remit or commute a sentence shall not be exercised by the state government except after consultation with the centre.
If there is no compliance of this Section, then the release of the convicts is illegal. In case such a consultation was done and the centre gave its approval, then it neither falls within the ambit of the general amnesty scheme introduced by the government for the release of prisoners as part of celebrations of Azadi ka Amrit Mahotsav which excludes persons convicted of rape crimes nor is it in sync with the call to “respect women” given by the prime minister from the ramparts of Red Fort.
It was certainly not a happy sight to see the 11 convicts of a horrendous crime walking out of prison on August 15. In releasing these life convicts, the Gujarat government may have followed the letter of the law, but not the spirit.
—The writer is an advocate in the Punjab & Haryana High Court, Chandigarh