Bilkis bano case-The hindu-24-08-2022

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What is the Bilkis Bano case?

Gujarat had turned violent after the Sabarmati train was burnt in Godhra on 27 February 2002 when 59 karsevaks were killed in the train.
Fearing the outbreak of violence, a then five-month pregnant Bilkis Bano fled from her village with her three-and-a-half-year-old daughter and 15 other family members.
They were attacked by about 20-30 people whereas Bilkis, her mother, and three other women were raped and brutally assaulted.
Only Bilkis, a man, and a three-year-old survived the attack.
Her case was taken up by the National Human Rights Commission (NHRC) and Supreme Court, which ordered an investigation by the CBI.

What happened in the case?

The accused in the case were arrested in 2004 and the trial was moved out of Gujarat to Maharashtra after Bilkis Bano received death threats.
In 2008, the Special CBI Court sentenced 11 accused to life imprisonment on the charges of conspiring to rape a pregnant woman, murder and unlawful assembly under the Indian Penal Code.
The court acquitted seven other accused for lack of evidence.
The Bombay High Court, in 2017, upheld the conviction and life imprisonment of 11 people in the gang rape case.
In 2019, the Supreme Court awarded compensation of Rs 50 lakh to Bilkis — the first such order in a case related to the 2002 riots.
Why have the convicts been released now?
One of the convicts had approached the Gujarat High Court seeking remission of the sentence under sections 432 and 433 of the Code of Criminal Procedure.
The high court dismissed his plea while observing that the “appropriate government” to take a decision about his remission is Maharashtra, and not Gujarat.
He then filed a plea in the Supreme Court, pleading that he had been in jail for over 15 years without remission as of 1 April 2022.
The apex court directed the Gujarat government to look into the issue of remission of his sentence following which the government formed a committee.
The committee took a unanimous decision in favour of remission of all the 11 convicts in the case.
About Remission and the Laws Governing it
The Prison Act of 1894 defines remission as the system of “rules for the time being in force regulating the award of marks to, and the consequent shortening of sentences of, prisoners in jail”.
Prison is a subject under the State List of the Seventh Schedule of the Constitution, and its management and administration fall under State governments.
The laws for remission are basically, the State’s efforts to reform criminal justice and protect human rights.
As per law, there are three kinds of remissions viz constitutional, statutory, and those earned in accordance with jail manuals.
Article 72 of the Constitution, empowers the President to grant remission, whereas Article 161 grants similar power to the Governor.
Section 432 of the Code of Criminal Procedure empowers the ‘appropriate government’ to suspend or remit the sentence of a prisoner.
Section 433A of the Code of Criminal Procedure states that a prisoner, found guilty of an offense punishable with death and whose death sentences were commuted to life imprisonment under Section 433 shall not be released before 14 years.
Section 435 of the Code of Criminal Procedure states that in cases investigated by the Delhi Special Police Establishment, or by any agency that has investigated an offense under a Central Act other than the CrPC, the States have to act in consultation with the Central government.
In D. Krishna Kumar vs State of Telangana, the HC ruled that, before deciding on the remission plea, the appropriate authority “may” also seek the opinion of the presiding judge of the court where the sentence was passed, as to whether the application should be granted or refused, together with his reasons for such opinion.

Why is the remission criticized?

Against treating crimes as heinous- The remission runs contrary to the spirit of contemporary thinking on treating crimes against women and children as so heinous that the perpetrators should not be considered for remission.
No premature release- The Cr.P.C. does permit premature release in the form of remission or commutation in life sentences, but it should be based on a legal and constitutional scheme, and not on a ruler’s whimsy.
Political considerations- Any decision on remission should be linked to the convict’s expression of regret and some promise of reform.
It would be unjustified if given for political considerations merely because of elapse of the minimum number of years they have to serve.