India dispatch: SCI Bilkis Bano ruling invitations reconsideration of remission and parole processes – JURIST

Indian legislation college students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Sunidhi Das, a JURIST Assistant Editor and a second-year scholar at Nationwide Regulation Faculty of India College, Bengaluru.   

On February 27, 2002, a tragic incident unfolded on the Godhra station in Gujarat, India, when a prepare carrying Hindu pilgrims coming back from Ayodhya, a revered website for Hindus, caught fireplace. This unlucky occasion resulted within the loss of life of 59 folks, predominantly pilgrims. The reason for the fireplace has been a topic of controversy, with conflicting accounts suggesting both a pre-planned assault by a Muslim mob or an unintended cooking fireplace sparking the inferno.

The aftermath of the Godhra incident noticed a pointy escalation of tensions and widespread violence throughout Gujarat. Fuelled by rumors and misinformation, Hindu mobs retaliated in opposition to Muslim communities, focusing on their properties, retailers, and locations of worship. The state authorities, led by Chief Minister Narendra Modi, confronted extreme criticism for its alleged failure to regulate the violence and safeguard the minority neighborhood.

The following riots persevered for 3 days, claiming over 1,000 lives, with the vast majority of the victims being Muslims. The Godhra incident and its aftermath stay as darkish chapters in India’s historical past, elevating questions on communal concord, the function of political management, and the necessity for efficient measures to stop and tackle such tragic occasions.

On January 8, 2024, the Supreme Court docket of India quashed the Gujarat authorities’s determination to grant remission to the 11 convicts who had been sentenced to life imprisonment for the gangrape of Bilkis Bano and the homicide of seven members of her household through the 2002 Gujarat riots. Which means that the convicts should give up again to jail to serve their remaining sentence.

The Bilkis Bano case stands as a haunting episode of communal violence in India. In 2002, amid the riots, 21-year-old Bilkis Bano, 5 months pregnant, endured a horrific gang rape whereas fleeing the chaos. Tragically, seven members of her household, together with her three-year-old daughter, had been brutally murdered. Initially, native police did not register Bilkis’s grievance and even subjected her to threats. Undeterred, she persevered, in search of help from the Nationwide Human Rights Fee and ultimately reaching the Supreme Court docket.

In 2003, the Supreme Court docket directed the Central Bureau of Investigation (CBI) to research the case, and in 2004, the trial was transferred to a reliable courtroom in Mumbai. After a protracted authorized battle, in 2008, a Bombay courtroom convicted the 11 males on a number of prices, together with homicide and gang rape, sentencing them to life imprisonment. The Bombay Excessive Court docket and the Supreme Court docket upheld the convictions and sentences in 2009 and 2017, respectively. In 2019, the Supreme Court docket ordered compensation for the torment and ordeal suffered by Bilkis Bano.

In 2024,  the division bench comprising Justices B V Nagarathna and Ujjal Bhuyan, delivered a major judgment within the case of Bilkis Yakub Rasool v. Union of India (known as ‘Bilkis Bano’). The first petitioner, Bilkis Yakub Rasool, generally referred to as Bilkis Bano, contested the Authorities of Gujarat’s determination on August 10, 2022, to grant remission to 11 people convicted of raping her through the 2002 Godhra Riots in Gujarat. In a landmark ruling, the Court docket deemed the remission unlawful and directed the convicts to give up to the suitable jail authorities inside a two-week timeframe.

The controversial remission granted by the Gujarat authorities in August 2022, on Independence Day, triggered widespread outrage and protests throughout the nation. One of many convicts had sought remission underneath Sections 433 and 433A of the Code of Criminal Procedure, 1973(CrPC). In 2019, he challenged the federal government’s non-consideration of his remission software earlier than the Excessive Court docket. In its 2019 order, the Excessive Court docket of Gujarat famous that because the trial occurred in Mumbai, the Authorities of Maharashtra, not Gujarat, was the suitable authority for remission. The convict then utilized to the Maharashtra Authorities, which, following its remission coverage, consulted the CBI and the Particular CBI Court docket, each of which opposed the remission. In 2021, the remaining convicts additionally utilized for remission, with the CBI and the Particular CBI Court docket as soon as once more opposing it.

In 2022, one of many convicts filed a Writ Petition within the Supreme Court docket, in search of a writ of mandamus directing the Authorities of Gujarat to contemplate his software for untimely launch underneath its 1992 Policy.

A number of important questions come up in reference to this determination relating to jurisdiction. Firstly, it’s important to determine whether or not the Gujarat Authorities possessed the authority to grant remission. Secondly, the remission should align with the 1992 coverage of the Gujarat Authorities, because it prevailed on the time of conviction. The insistence on adhering to the 1992 Coverage stems from the truth that the present coverage, revised in 2014, prohibits remission for these accused of heinous crimes corresponding to rape and homicide.

The Supreme Court docket rendered a judgment on this matter in 2022, affirming that the Authorities of Gujarat was the competent authority to grant remission and emphasizing the need for adherence to its 1992 coverage. Nevertheless, the Court docket erred by erroneously conferring jurisdiction on the Gujarat Authorities for remission. This determination missed Part 432(7)(b), which defines ‘applicable authorities’ underneath Part 433 as “the Authorities of the State inside which the offender is sentenced or the mentioned order is handed.” Moreover, it disregarded earlier Supreme Court docket rulings indicating that the suitable authorities in such instances is the one the place the conviction and sentence had been pronounced.

The petitioner-convict within the Bilkis Bano case engaged in misrepresentation and the suppression of important information throughout authorized proceedings. The petitioner hid that, in accordance with the Gujarat Excessive Court docket judgment, that they had initiated an software for remission earlier than the Maharashtra Authorities.  This misrepresentation was baseless, because the Gujarat Excessive Court docket’s judgment clarified the federal government’s competence to grant remission, whereas the Bombay Excessive Court docket, in 2013, merely addressed the switch of prisoners to their dwelling state publish the trial’s conclusion, with out expressing an opinion on the competence of both authorities to resolve on remission. Regardless of the divergence within the points addressed by the 2 judgments, they had been falsely portrayed as conflicting earlier than the Court docket. This misrepresentation performed a pivotal function in vitiating the 2022 judgment.

Regardless of the readability supplied by a Structure Bench determination in Union of India vs V. Sriharan (2015) that the suitable authorities to resolve a remission software is the state the place the convicts are sentenced, the Court docket noticed that the Gujarat authorities “usurped” energy from the Authorities of Maharashtra. Consequently, the Court docket declared the sooner two-judge Bench determination of the Supreme Court docket, which thought of the Gujarat authorities as the suitable authorities for remission on this case, as unlawful (per incuriam). Because of this, the remission orders for the 11 convicts had been canceled, they usually had been directed to return to jail inside two weeks.

The Supreme Court docket is rightly counseled for upholding the rule of legislation within the face of the distinctive injustice prevalent in Bilkis Bano’s wrestle. The choice emphasised that the violation of the rule of legislation and equality earlier than the legislation is a matter of judicial scrutiny, reinforcing the significance of authorized rules.. Justice Nagarathna’s phrases function a soothing reassurance, notably in mild of the disturbing reminiscence of celebrations following the discharge of the 11 convicts in August 2022.

The continued case is a obvious occasion of unrestrained discretion. Within the  Epuru Sudhakar vs. State of Andhra Pradesh (2006) determination, the Supreme Court docket established that judicial evaluate of a remission order is barely permissible underneath particular circumstances: non-application of thoughts, failure to contemplate related supplies, malice in intent, basing the choice on irrelevant components, or exhibiting arbitrariness. Within the absence of specific causes guiding these selections, difficult them on these grounds turns into difficult. This lack of utilized reasoning turns into notably evident within the case of the 11 convicts associated to Bilkis Bano, because the orders issued by the Gujarat authorities for every of them are similar.

Within the Bilkis Bano remission case, the Supreme Court docket unearthed illegalities and injustices, pointing to ‘fraud’ and the ‘usurpation of energy’ by the federal government, thereby obviating the necessity to delve into complicated normative questions. Sure remission insurance policies adopted by states convey this situation to the forefront extra starkly.

Presently, some Indian states have remission policies that categorically exclude sure offenders from any remission alternatives or impose considerably longer incarceration intervals for particular offenses earlier than even contemplating remission. The Indian Constitution designates prisons as state topics, permitting every state to ascertain its guidelines for prisoners to interact in reformative actions, incomes remission within the type of deducted days from their sentence. This apply aligns with the concept prisons ought to give attention to rehabilitation quite than solely punitive measures.

For all times convicts, eligibility for remission arises after serving a minimal of 14 years, topic to particular person software and committee analysis based mostly on components outlined by the Supreme Court docket. These components embody the character of the offense, the chance of reoffending, lack of legal potential, the need of continued confinement, and the socio-economic situation of the convict’s household. Regardless of the subjective nature of those issues, the shortage of transparency in committee formation and decision-making processes creates a possible for arbitrary train of energy within the remission system.

This prompts the need to handle whether or not offenders categorised by crime classes needs to be mechanically disqualified from remission or if a extra constructive strategy includes establishing appropriate situations for remission and guaranteeing truthful and significant adherence to these situations. A blanket denial of remission based mostly on crime classes, quite than guaranteeing efficient compliance with remission situations, steers us towards a punitive framework grounded in retribution.

The Supreme Court docket’s determination in instances of heinous crimes emphasised justice and deterred the selective software of the legislation, restoring hope within the authorized system’s capability to guard susceptible communities. This case requires important reforms in legislation enforcement and authorities our bodies to make sure unbiased investigations and clear processes for remission and parole. The Bilkis Bano case is anticipated to be a pivotal second in India’s efforts in opposition to communal violence and violence in opposition to girls.


Opinions expressed in JURIST Dispatches are solely these of our correspondents within the subject and don’t essentially mirror the views of JURIST’s editors, workers, donors or the College of Pittsburgh.

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